Fighting visa cancellations on criminal grounds is a tough gig but can deliver results

There is a healthy sprinkling of successful review both in the Federal Court and the Administrative Appeals Tribunal against visa cancellations based on criminal grounds.

Recently, in Nafady v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1434, the issue concerned what material can the minister take into account of police material gathered in what turned out to an unsuccessful criminal prosecution. Here the former visa holder was found not guilty of sexual assault but the minister chose to rely on some of the material gathered by the police in the investigation to warrant visa cancellation. This was set aside by the Federal court which stated:

63.The point really is that, faced with competing accounts as to whether alleged criminal conduct occurred, one an emphatic denial and the other a hearsay statement in a police report, it was incumbent on the Minister, if he were to use such past conduct as a stepping stone to why it was that there was a risk that Mr Nafady would engage in criminal conduct in Australia in the future, to expose his reasoning by reference to material reasonably admitting of that conclusion, that, nonetheless, such conduct had, to his reasonable satisfaction, occurred.

64.Perhaps all that can be said, given that the decision-making is administrative, not judicial, is that, where a grave finding touching on personal liberty must be made, the evaluation as called for in Plaintiff M1/2021 must be exposed, logical, rational and reasonably open on the material to which reference is made in the evaluation. To insist on more is inconsistent with the observations, quoted above, in Plaintiff M1/2021 and, for that matter, with the observations of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1, at 35 – 37; to tolerate less is conducive to arbitrariness in dealings by the executive with citizens and non-citizens. A recollection of history and attention to current affairs offers warning enough about why there should be no such toleration.

65.As to other conduct in police reports, Mr Nafady submitted that the Minister “appears to have uncritically accepted untested and uncorroborated accounts, some of which were not even drawn to the applicant’s attention by [the police].” The Minister’s reasons reveal he did so. Once again, the Minister was not bound by formal rules of evidence. But he was obliged to explain why he chose to act on such reports.

In an earlier case, Colvin J in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; stated at [186]:

“... in any decision-making context (administrative or judicial) some modes of proof carry considerably more weight than others. Also, the weight to be afforded particular material depends upon the seriousness of the allegation the decision-maker is asked to accept, any inherent unlikelihood of its occurrence and the gravity of the consequences that may flow from making the finding. In the classic exposition of this point by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; , his Honour captured its essence by saying ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’. If there is no conviction and a party makes a claim that a crime has been committed by another then due ‘weight is to be given to the presumption of innocence and exactness of proof is expected’. Likewise, if the claim made is that a person has been wrongly convicted or sentenced or the facts upon which that conviction or sentence were based were untrue then due weight must be given to the character of that claim and its seriousness.”

In Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4065, the AAT considered that electronic communication between a parent and a child was a poor substitute for personal contact:

49.The Tribunal considers that, despite the conflicting evidence, the child is probably that of the Applicant but that this could only established by DNA testing. Irrespective, the fact is that the evidence shows that the Applicant and his partner were living together in the two-year period before he was incarcerated for his last offence and that the Applicant was in loco parentis. The possibility that the Applicant could serve in a parental role if he were removed from Australia would have detrimental consequences to his daughter. Communicating by electronic means is not an appropriate substitute, as was considered by the Tribunal in HMDS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1634 at [83] – [84]. The best interests of the Applicant’s child weighs in favour of the revocation of the original decision.

The case illustrates the practice point that if there is doubt about the parentage of a child, DNA testing is essential, an issue left in doubt inevitably dilutes its force.

Nguyen concerned offences centred on being ‘baby sitters’ for commercial cannabis crops, something which seems to be occurring with some regularity. The former visa holder was therefore in the low end of the criminal hierarchy.

Nevertheless the AAT found for the applicant a very thoughtful decision:

86.The Applicant has been given a second chance to become a law-abiding citizen. The Applicant has failed to accept that privilege. He has committed a further serious offence of the same kind. However, the Tribunal takes into consideration the circumstances which led him to engage in the criminal activity. The Tribunal notes that the conduct has not involved violence to any person nor has the Applicant been directly involved in any harm to any member of the Australian community.

87.The factor which weighs heavily on the Tribunal’s consideration is the fact that he now has a three year old daughter and that there is a close bond between the Applicant and the daughter. If the Applicant is unsuccessful in his application, it is most likely that the child will be bought up without a father. Such a consequence would be highly detrimental to the child and the Applicant now appreciates the responsibility of being a parent.

88.The Tribunal heard testimony from the child’s mother. The Tribunal was impressed by her testimony. She stated that she was unaware that the Applicant had taken employment on the second occasion which caused him to break the law. She was most annoyed that he had become involved in criminal activities. The Tribunal considers that in the future, the Applicant’s partner and her child will pose a stabilising influence in his life. The Tribunal is required to have regard to the future, rather than the past. As Buchanan J observed in NBMZ at [192] relevantly:

... the discretion to be exercised under s 501 is fundamentally forward, rather than backward, looking. It concerns the future, not the past.

89.The Tribunal considers that, but for the interests of the child, it would dismiss the application. However, it considers that the interests of the child overrides the possible risk of recidivism which is assessed to be low-medium weighs in favour of revoking the decision under review. The Tribunal does not consider that the Applicant constitutes a “danger” to the community, that is a present and serious risk: see DOB18 v Minister for Home Affairs [2019] FCAFC 63; nor is there a “real or significant risk or possibility of harm to one or more members of the Australian community”: see BHYK and Minister for Immigration and Citizenship [2010] AATA 662 at [53]. The possible risk to the community if the Applicant is permitted to remain in Australia is an acceptable risk.

I cover the criminal visa cancellation regime in an intensive 4 hour session next Friday 9 December 2022 in our last 10 CPD point webinar/workshop of the year. Looking forward to seeing you there.