The Minister Cannot Continually Revisit Whether a Visa Should Be Cancelled Unless Circumstances Change
Does the Minister have a never-ending power to cancel a visa on character grounds based on the same set of facts?
Can the Minister proceed to cancel a visa a second time based on the visa holder’s same record of offending, even if the original cancellation has been set aside by the Tribunal?
Or must there be fresh facts or convictions establishing that the visa holder does not satisfy the character test before the power to cancel a visa can again be enlivened?
These important questions were raised by a case that was decided on 15 November 2018 by Justice Colvin of the Federal Court, Brown v Minister for Home Affairs (2018) FCA 1722.
The factual background of this case was that the visa holder, Brown, had come to Australia from the UK in 1981, at the age of 7, and has lived in Australia since that time.
He was convicted of several offences in February 2010, including grievous bodily harm, assaulting a police officer, assault, criminal damage and stealing a motor vehicle. As a result of these convictions, he was sentenced to 5 years imprisonment.
In 2012, a delegate of the Minister cancelled Mr Brown’s visa based on these convictions.
However, this original visa cancellation was set aside by the Tribunal in April 2012.
The Minister did not exercise his powers to have that decision of the Tribunal set aside in turn.
However, on 1 May 2018, the Minister again made a finding that Brown did not satisfy the character test, based on the conviction for grievous bodily harm that had been recorded in February 2010.
There had not been any significant new offending by Brown since the original visa cancellation had been set aside by the Tribunal, 6 years earlier. The only additional matters that were on his record were relatively minor traffic offences – four relating to driving a motor vehicle without a license, and a fifth involving driving an unlicensed vehicle. Brown had been given fines totaling $1,650 for these traffic matters, but no further sentence of imprisonment was imposed.
In fact, in the submissions that he made to the Federal Court in support of his application to have the second visa cancellation set aside, Brown noted that he had been warned by the Tribunal that he would be at risk of a further cancellation if he offended in the future, and he told the Court that he had “turned his life around” and had “kept his word” and had not been sent to prison since the original visa cancellation had been set aside.
Justice Colvin held that the proper interpretation of the visa cancellation powers that are provided in section 501(2) of the Migration Act is that these powers cannot be repeatedly exercised in relation to the same set of facts. Rather, Justice Colvin ruled, once a decision has been reached not to cancel a visa on a particular set of facts (for example, in circumstances where the Tribunal has set aside a decision of a delegate to cancel a visa on character grounds), then the criminal offending that gave rise to the original cancellation cannot form the basis for a further cancellation.
Instead, there must be new facts (presumably that have arisen since the original visa cancellation decision that was set aside), and one or more new grounds (such as new convictions resulting in sentences of imprisonment of a year or more) before the power to cancel a visa can be enlivened and exercised again.
In the critical section of His Honour’s reasons, at (37) of the judgment, Justice Colvin made the following observations:
“…the subject matter of the act is broadly inconsistent with an ability to revisit the question whether a visa should be cancelled once a decision has been made, on particular facts, that the visa should or should not be cancelled. It would introduce substantial uncertainty and jeopardy in respect of the rights conferred by visas if they could be subject to repeated consideration as to whether they could be cancelled by reference to the same factual position in respect of matters giving rise to a power to cancel a visa.”
So, the important lesson that can be drawn from Justice Colvin’s decision in Brown is that the Department simply cannot revisit a decision not to cancel a visa once it has been made (either by the Minister, her/his delegate or the Tribunal) unless since the time of the original decision new facts and circumstances have come into existence that provide a fresh basis for a reasonable suspicion that the visa holder does not pass the character test.
In circumstances where the Department or the Minister do attempt to rely only on the original set of facts (that have been relied upon for a cancellation decision that was ultimately set aside) then that subsequent cancellation decision is vulnerable to challenge.
An interesting aspect of this decision is that (since visa cancellations are immediately effective when made, and the visa holder becomes an unlawful non-citizen as soon as a cancellation occurs) Mr Brown was taken into immigration detention immediately after his visa was cancelled (on 1 May 2018) and he remained in detention until his release was ordered on 15 November 2018 – a period of more than 6 months.
In other words, Mr Brown was deprived of liberty for a period of 6 months even though the visa cancellation was ultimately found to be wrongful.
Given this outcome, one has to wonder whether the current framework of the Migration Act is consistent with fundamental concepts of natural justice, and whether it should really be the case that persons should be held in detention while they challenge potentially wrongful decisions to cancel their visas.
At a minimum, one has to wonder why cancellation decisions cannot be litigated during the period while the visa holder is serving his/her criminal sentence, so that if the cancellation is ultimately determined to be wrongful, the visa holder is not unnecessarily deprive of her/his freedom.