by Paul Cutler | Jul 19, 2022 | Uncategorized
Mr Calvey is a New Zealand citizen with a significant (serving a concurrent sentence of 339 months) criminal history. He is also the father to three minor (Australian citizen) children by two different mothers. His visa was cancelled in May 2020.
Under Direction 79 (the predecessor to Direction 90), the “best interests of the children” is one of the primary factors (to be given greater weight) in exercising the discretion as to whether or not to revoke the cancellation decision. At the AAT hearing, the mothers gave evidence of the views of their respective children (ie they wanted a relationship with their father). There was no direct evidence from the children and no expert evidence.
Despite that, the Tribunal found (at [232] that: “In circumstances where the Tribunal does not have the views of the Applicant’s biological children before it, the Tribunal is unable to afford sub-paragraph (f) of paragraph 13.2(4) of the Direction any measure of weight.”
The Court expressed some reservations about whether this was an error despite the Minister’s concession that it was. The issue then became one of materiality. Existence or non-existence of a realistic possibility that the decision could have been different is a question of fact which the applicant in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof. In this case the applicant did not establish that there is a realistic possibility the decision would have been different if his children were able to give their views. Overall, considering that the applicant’s children are quite young, it is reasonable for their mother to speak on their behalf of their wishes to maintain a relationship with their father.
If you want to read the whole case: Calvey v Minister for Immigration [2022] FCAFC 104.
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by Paul Cutler | Jun 30, 2022 | Uncategorized
Mr Alexander was born in Australia in 1986 and acquired both Australian and Turkish citizenship at the time of his birth. His case in the original High Court challenged the constitutional validity of section 36B Australian Citizenship Act. That section provides for cessation of citizenship if certain conduct is engaged in (eg engaging in foreign incursions) outside of Australia. Perhaps it is sufficient to say that the case was conducted through a litigation guardian because his family and lawyers have not been able to contact him since 15 July 2021, shortly after he told them that he was being transferred to the Branch 235 prison in Damascus, Syria, operated by Syrian intelligence.
Like many constitutional law judgments (Alexander v Minister for Home Affairs [2022] HCA 19) it is long and complex with one dissenting judgment (Stewart J upheld the validity of 36B). The most succinct reason that I can distill for the invalidity was expressed by Gordon J who found that denationalisation is a punishment and at [173]: “Section 36B is contrary to Ch III. It confers on the Minister the power to impose a sanction upon a person (involuntary cessation of citizenship) for engaging in past conduct of a kind identified as warranting the condemnation of the Australian community. It permits the Executive to do what it cannot: to “exercise judicial power and act as prosecutor and judge to punish breach of law by executive fiat or decree“.
There is a lot of quite interesting historical discussion about deprivation of citizenship in ancient Rome and outlawry from the time of the Norman conquest. In any event 36B was invalid because it contravened the separation of powers. Mr Alexander is still an Australian citizen and is (presumably) still in a Syrian prison.
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by Paul Cutler | Jun 24, 2022 | Uncategorized
The Court may grant an extension of time for filing a judicial review application under section 477(2) if it considers it is in the interests of justice to do so. This usually involves inter alia a “reasonably impressionistic” examination of the merits. In FKV17 v Minister for Home Affairs [2022] FCAFC 93 case management orders were made for the determination of the extension of time issue and for a later hearing if the extension was granted. When the matter came before Judge Vasta (recently infamous for imprisoning family law parties for contempt), he effectively conducted a full hearing, found the grounds without substance and dismissed the application for a time extension.
My first reaction was what’s wrong with that? If the grounds fail then there can be no extension time.
Well, it actually raises some complicated admin law principles about the constitutional writs, “conflating of powers”, inferior courts and the High Court cases of Craig and Kirk. It also resulted in a 2:1 majority decision (in the Applicant’s favour) but even the judges in the majority had different reasons. However, the simplest explanation was given by Rangiah J at [153]: “In this case, the approach taken by the FCC judge to the application under s 477(2) of the Act was to determine whether the proposed grounds would ultimately succeed or fail, rather than to assess their prospects of success. His Honour did not suggest that the grounds were unarguable. His Honour determined that each ground “fails”, and refused an extension of time primarily for that reason. That approach conflated the Federal Circuit Court’s function under s 477(2) of determining an application for an extension of time with its function under s 476 of determining a substantive application. It must be concluded that the FCC judge misconstrued s 477(2) and thereby fundamentally misconceived the nature of the Federal Circuit Court’s function. Subject to the question of materiality [it was] the error was a jurisdictional error”.
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by Paul Cutler | Jun 10, 2022 | Uncategorized
Mr Mukiza was an African born Canadian citizen with serious mental health issues (as well as a criminal record which resulted in the cancellation of his visa). The controversy in this case was around what was referred to as “ the Rehabilitation Finding” (viz the AAT found that the standard of support for rehabilitation services in Canada was similar to Australia).
At first instance Mukiza succeeded in convincing the court that there was no evidence to support the Rehabilitation Finding even though he did not contest the correctness of the finding. About a week after the primary judge’s decision, the High Court handed down Viane v Minister for Immigration [2021] HCA 41. The Minister appealed and the application of Viane to the facts became the central issue. See Mukiza v Minister for Immigration [2021] FCA 1503
Viane makes it clear that in reaching the standard of satisfaction necessary to find there is another reason to revoke the cancellation decision, it wasn’t always necessary for administrative decision makers to engage in fact finding. The High Court noted:
- There is otherwise nothing in the statutory language of s 501CA(4) of the Act that prohibits the Minister from using personal or specialised knowledge, or commonly accepted knowledge, for the purpose of considering the representations made by an applicant; and
- If the Minister makes a finding of fact in the exercise the power conferred by s 501CA(4), the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material. By “no evidence” this has traditionally meant “not a skerrick of evidence”.
The Full Court found that the Rehabilitation Finding wasn’t one that required evidence. In allowing the Minister’s appeal, it noted at [61] [citations removed]: “The onus on Mr Mukiza, assuming he first succeeded in establishing that the finding was one which required evidence but was one in respect of which there was not a skerrick of evidence, is to show that, if the error had not occurred, there is a possibility that the outcome may have been different: …. If that onus is not discharged, the error will not have been shown to be jurisdictional. The discharge of this onus does not necessarily require proof that the impugned finding was wrong. It might, for example, be shown that the outcome might have been different simply because the impugned finding would not have been made.”
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by Paul Cutler | May 30, 2022 | Uncategorized
XXBN’s partner visa was cancelled under 501CA Migration Act after a series of domestic violence incidents, breaches of ADVO’s and ultimately several assault charges relating to his partner and her sister. The complication in the facts was that his partner (and her sister) had both given evidence that they had forgiven him. They also both provided statements in support of the cancellation being revoked.
Despite this support, his application to revoke the cancellation was unsuccessful and by the time it reached the Full Federal Court, the argument was about how to deal with two of the “other factors” which have to be considered under Direction 79, namely “strength, nature and duration of ties” and “impact on victims”.
The Applicant argued that each of those factors had to be considered separately and he would effectively receive a double weighting because his victims and his family were one and the same. The Court found: “The Tribunal implicitly acknowledged that it would have been a duplication to then give a further weighting in favour of revocation on the basis of the same considerations under other consideration (d) [impact on victims]. There is no error in that approach.”
And just for good measure the court agreed that “where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously”
You can read the whole case here: XXBN v Minister for Immigration [2021] FCA 1047
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by Paul Cutler | May 18, 2022 | Uncategorized
It’s not controversial that if Applicants are unresponsive to the Minister’s requests for information a delegate can exercise the discretion (under s62 Migration Act) to refuse the visa. The recent single judge (Gordon J) High Court decision of Plaintiff S183 v Minister [2022] HCA 15 demonstrates that the discretion has to be exercised reasonably.
Plaintiff S183 was a Turkish lady who feared persecution because of her sexuality. She had engaged in scattered correspondence with the Department in broken but intelligible English. By August 2019 the plaintiff was homeless and eventually hospitalised due to her declining mental state. In January 2020 she was invited to an interview in Melbourne (even though she lived in Sydney). She told the Department that she had no money and couldn’t travel to Melbourne. The interview was re-scheduled in Sydney and the Applicant didn’t attend (and the visa was refused).
Gordon J noted the following:
[32] … the critical point is that it was apparent on the face of the email sent by the plaintiff on 20 February 2020 that she did not realise that the Department was offering her an interview in Sydney. …
[33] This also has to be seen in the context of other information on the plaintiff’s file which was in evidence before this Court, including the plaintiff’s email sent three days earlier, in which she said, among other things: “i am in sydeny without money and home, i have been reaaly bad situation to come back melbourne for case, no body listen to me even government, call me bla bla or whatever or ye ye ye, i am really suffering mentally and phscichly“. The Minister submitted that this was “a rational response written in English”. That submission cannot be accepted. The information before the delegate indicated that the plaintiff was homeless, had no money, struggled to communicate in English and had been experiencing serious mental health issues requiring hospitalisation.
[34] No one from the Department attempted to correct the plaintiff’s misunderstanding as to the location of the interview she was being offered….
[35] It must be accepted that, if a visa applicant is unresponsive, there may come a point in time where it is reasonable for a decision‑maker to exercise the discretion under s 62 of the Migration Act and make a decision to refuse to grant a visa. But no reasonable decision-maker could have decided that that point had been reached when the plaintiff had obviously misunderstood what was being offered to her and no one attempted to correct her misunderstanding.
As a result her Honour granted an (18 month) extension of time and proceeded to quash the delegates decision.
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