The anatomy of a successful challenge to an airport visa cancellation
3.30am Friday at an Australian airport a person’s student visa is cancelled, the person was returning to Australia after visiting relatives and to attend a relative’s wedding. Migration clearance denied, the person is placed in detention. It is alleged abhorrent video material is found on his Iphone.
Mid-morning relatives contact lawyers, Immigration stymies lawyers direct personal access to the client although telephone contact is made. But through relatives 956 form is signed
5pm Friday Immigration notifies lawyers that the person will deported on Saturday at 2.40pm on a flight.
6.30am Saturday Lawyers locate a Border Force officer of inspector rank and ask that the removal be delayed until next week on the basis that legal proceedings are planned for lodgement on Monday, Immigration flatly refuses.
6.45am lawyers commence drafting material for an immediate Federal Circuit & Family Court application for habeas corpus, judicial review and an interlocutory injunction to restrain the Minister deporting the person.
7.30am, Saturday telephone calls made to the court duty Registrar to arrange a judge for an urgent hearing.
Mid-morning lawyers appointed for the Ministers and again proposition is put to delay the deportation until the following week, request refused by the Minister’s lawyers
11.30am, Saturday, Court application and submissions sent to the court registrar, judge is appointed to conduct the hearing, copies of material sent to the Minister’s lawyers, all systems go.
12.30pm Ministers lawyers advise that the deportation scheduled for 2.40pm has been called off and the person’s lawyers will be notified if and when the deportation will take place.
12.30pm Person’s lawyers as for immediate access to the video material.
Monday 9am Lawyers repeat urgent request to view video material
Friday 2.30pm Persons lawyers granted access to video material.
Meanwhile judge has set the matter down for expedited hearing to be heard 19 days after the airport visa cancellation, person’s lawyers then prepare full submissions and affidavits.
On the day prior to the scheduled hearing, the Ministers lawyers notify the person’s lawyers that the Minister will consent to orders setting aside the visa cancellation with costs!
2.30m Person released from detention with restored student visa
What prompted the visa cancellation was the presence of a brutal video made in 2019, received via group chat on WhatsApp of Venezuelan soldiers using a machete to cut off the tongue and fingers of an alleged army deserter, it is very graphic.
Visa was cancelled on the basis of Reg 2.43
Reg 2.43 Grounds for cancellation of visa (Act, s116)
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
(t) in the case of the holder of a temporary visa—that the Minister reasonably believes that the visa holder:
(i) has imported goods to which regulation 4A of the Customs (Prohibited Imports) Regulations 1956 applies;…
CUSTOMS (PROHIBITED IMPORTS) REGULATIONS 1956 - REG 4A
(1A) This regulation applies to publications and any other goods, that:
(a) describe, depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be imported;
The delegate cancelling the visa said the video breached the Customs regulations.
Material assembled for the court hearing stated that the video in question was available in Australia on the internet using a Google search and was subject to news comment and reportage.
Plus the visa cancellation happened very quickly and it turned out the video material was never shown to the person and only broadly described. It turned out in recent weeks there was a less graphic incident of a person in India having his fingers cut off with a machete over retribution for a murder and this video had gone viral in India and the person had seen the video and thought the video in question was that video (the person, of course had nothing to do with either video).
The person responding to the questions and the interviewer were at cross-purposes because unbeknown to each other they were talking about different videos.
We argued that the discretion had been improperly exercised, that the video in any event did not breach the Customs Regulations and that the natural justices provisions in the Migration Act had been materially breached.
The rules of natural justice are set out in
Section 119 Notice of proposed cancellation
(1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:
(a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i) those grounds do not exist; or
(ii) there is a reason why it should not be cancelled.
Section 121 (3) Subject to subsection (5), if the invitation is to respond at an interview, the interview is to take place:
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period.
Here the delegate gave the person in the early hours of the morning, ten minutes to respond and then promptly cancelled the visa.
The Minister accepted that proper particulars had not been given to the person when the visa was cancelled.
There was no attempt to revive the visa cancellation. The person was released from detention.
However in the above at all stages Immigration pressed the deportation and only related when full material had been supplied to the Minister’s lawyers.
There is a take home message for visa holders. I have always asserted that a person’s mobile phone handset and a laptop computer is an evidence box. Evidence on such devices can be taken out of context and be wrongly interpreted.
There is some value in leaving such devices at home and buy a cheap mobile phone on arrival and don’t bring that mobile phone back to Australia. Similarly a cheap laptop can be purchased offshore, loaded with basic software for email and similarly leave that laptop in the home country.
Airport visa cancellations are done in a huge hurry and in this case, in my view unreasonably, the person was given 10 minutes to respond to the allegations.
No doubt 99% of persons who’ve had their visas cancelled don’t have immediate access to lawyers, in this case, I had acted for one of the person’s relatives in a contested 4020 matter and that relative contacted me to advise, instructing solicitors were appointed and we proceeded at full pelt on Saturday morning to get the cancellation overturned.
We cover these types of issues and all character issues in my workshop/webinar tomorrow Friday 24 March, 2023, there are still positions available.