Cancellation of BVE Visas
Playing out throughout Australia is an ugly regime where a person’s Bridging Visa E (BVE) visa is cancelled on the basis of a person having been charged with a criminal offence even though no trial of the offence has taken place. In practice it is clear that the police are working hand in glove with the Department of Immigration to cancel those holding BVE’s who have been arrested by the police. Often people who have been granted bail by a court end up being placed in detention through Immigration then cancelling the BVE AFTER the person has been granted bail. It is difficult not to draw the conclusion that what the police cannot achieve in Court they achieve through liaison with the Department of Immigration.
It appears that judgment calls are being made by Immigration officers who have no experience in criminal law and no experience of the operation of the courts and it seems little training in human rights.
Here’s how all of this came to pass. On 28 June 2013 as one of the last regulations passed under the last Labor government the Migration Amendment (Subclass 050 and Subclass 051 Visas) Regulation 2013 was enacted. S 116(1)(g) of the Migration Act provides:
- 116] (1)……, the Minister may cancel a visa if he or she is satisfied that:
The new regulation prescribed that if a BVE holder was under investigation, was charged with any offence or convicted of any offence then this was a ground for cancelling the visa. This was done by adding these prescribed grounds to Reg 2.43(1):
(p) in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa—that the Minister is satisfied that the holder:
(i) has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country; or
(ii) has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country; or
(iii) is the subject of a notice…issued by Interpol for the purposes of locating the holder or arresting the holder; or
(iv) is the subject of a notice.. issued by Interpol for the purpose of providing either or both of a warning or intelligence that the holder:
(A) has committed an offence against a law of another country; and
(B) is likely to commit a similar offence; or
(v) is the subject of a notice.. issued by Interpol for the purpose of providing a warning that the holder is a serious and immediate threat to public safety;
(q) in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa—that:
(i) an agency responsible for the regulation of law enforcement or security in Australia has advised the Minister that the holder is under investigation by that agency; and
(ii) the head of that agency has advised the Minister that the holder should not hold a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa.
The Explanatory Memorandum (Select Legislative Instrument 2013 No 156), accompanying this amendment seeks to temper the power to cancel. For example it states:
While the new cancellation grounds capture a wide range of criminal offences, a decision to cancel will be based on the individual merits of a client’s case, including the severity of an offence.
HUMAN RIGHTS ELEMENT
Section 9(2) of the Human Rights (Parliamentary Scrutiny) Act 2011 requires that a Legislative Instrument ‘…must include an assessment of whether the legislative instrument is compatible with human rights.’ Attachment B Statement of Compatibility with Human Rights in response to that directive states:
Article 9(1) of the ICCPR [International Covenant on Civil and Political Rights]– prohibition on arbitrary detention
Article 9(1) of the ICCPR states that:
- Every person has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
Australia takes its obligations to people in detention very seriously. The Australian Government’s position is that the detention of individuals requesting protection is neither unlawful nor arbitrary per se under international law. Continuing detention may become arbitrary after a certain period of time without proper justification. The determining factor, however, is not the length of detention, but whether the grounds for the detention are justifiable.
In the context of Article 9, ‘arbitrary’ means that detention must have a legitimate purpose within the framework of the ICCPR in its entirety. Detention must be predictable in the sense of the rule of law (it must not be capricious) and it must be reasonable (or proportional) in relation to the purpose to be achieved.
As stated above, a BVE may be cancelled by virtue of these amendments. The objective of this proposal is to ensure the safety of the Australian which is a legitimate objective under the ICCPR.
Further, comprehensive policy guidance will be provided to decision-makers to assist decision makers to exercise their discretion. An additional safety mechanism in relation to the use of this discretion is that a person whose BVE has been cancelled will have access to merits review unless the Minister issues a conclusive certificate under s 339 of the Act. A person whose BVE is cancelled will also have access to judicial review.
That detention ought to be proportional means that a person arrested for an offence in the lower end of the scale ought generally not be detained by having a BVE cancelled if compliance with the ICCPR is a determining factor.
The reference to the ICCPR Treaty in the Explanatory Memorandum is significant in that it makes decisions on cancellation (and hence detention) ruled by what the High Court said in Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh (“Teoh ‘s case”)  HCA 20; (1995) 183 CLR 273 per Mason CJ & Deane J :
34…The fact that the provisions of the Convention do not form part of our law are a less than compelling reason – legitimate expectations are not equated to rules or principles of law. Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as “a primary consideration”. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it. [Footnotes omitted]
[The rest of the court echoed those observations in a unanimous decision.]
Hence in applying the cancellation power which will place a person in detention for a considerable period of time, the High Court has said that an officer will act in accordance with the conviction and determine if the resultant detention is ‘proportional’.
PRINCIPLES OF INTERPRETATION IN RELATION TO DETENTION LEGISLATION
Cancellation of a BVE under the grounds in Reg 2.43(p) or (q) leads to long term detention (as discussed below once a BVE is cancelled under this provision the person goes to detention and cannot apply for another visa). In this regard the courts have long cautioned against interpreting detention provisions in a way that lead to detention. Some guidance is gained from the words of Deane J (as he then was) in Donaldson v Broomby (1982) 60 FLR 124 at 126; 40 ALR 525 at 526 stated the obligation of those interpreting legislation about detention quite forcefully:
“It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable. Where the Parliament has legislated so as to define those circumstances, neither legal principle nor considerations of public interest commend or support a search among the shadows of earlier subordinate legislation for the means of evading the constraints upon the interference with the liberty of the subject which the Parliament has imposed.”
Comments by Gleeson CJ of the High Court are also useful :
Plaintiff S157/2002 v Commonwealth  HCA 2; 211 CLR 476; 195 ALR 24; 77 ALJR 454 (4 February 2003) per Gleeson CJ:
“30. Secondly, courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.”
It follows there is no presumption that a BVE ought to be cancelled when the circumstances set out in Reg 2.43(p) & (q) exist.
Not relevant legally, but the political context is always useful for an understanding of why things are done. The former Minister for Immigration Mr Morrison issued a Ministerial Direction under s 499 of the Migration Act on 12 September 2014 called DIRECTION No 63 Bridging E visas – Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q).
INTERPRETING DIRECTION 63
There is a lot of history to these ministerial directions and the courts have held over the years that a ministerial direction cannot hobble a broad discretion given by the Act or Regulations. The interpretation of directions is dealt with in a separate article. (In fact that article ought to be read thoroughly in connection with the application and interpretation of Direction 63.)
As a result Direction 63 although containing a lot of rhetoric has to be read in the context that a ministerial direction cannot fetter the discretion the decision maker is given under the regulations. Thus the discretion to cancel a visa as found in s 116(1)(g) is broad and unfettered.
If one looks at Reg 2.43(1)(p) & (q) there is a huge difference between conviction and arrest or investigation. The Direction does not adequately address those differences. The Direction states in paragraph 4.3(5) :
“(5) Bridging E visa holders who have been found guilty of engaging in criminal behaviour should expect to be denied the privilege of continuing to hold a Bridging E visa while they await the resolution of their immigration status. Similarly, where Bridging E visa holders are charged with the commission of a criminal offence or are otherwise suspected of engaging in criminal behaviour or being of security concern, there is an expectation that such Bridging E visas ought to be cancelled while criminal justice processes or investigations are ongoing.”
But the Direction goes on to say:
“(6) The person’s individual circumstances, including the seriousness of their actual or alleged behaviour, and any mitigating circumstances are considerations in the context of determining whether a Bridging E visa should be cancelled.”
Under the heading ‘5.1 How to exercise the discretion’ is the following:
“(2) Both primary and secondary considerations may weigh in favour of, or against, cancellation of a Bridging E visa.
(3) The primary considerations should generally be given greater weight than any secondary considerations.”
The word ‘generally’ leaves it open to find exceptions to the primary considerations. And 5.1(2) clearing opens up the discretion of a decision maker.
The main primary consideration legally has limited legal efficacy. It reads in part:
- Primary considerations
- the Government’s view that the prescribed grounds for cancellation at regulation 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance against these regulations should be considered for cancellation, in accordance with the discretionary cancellation framework;
All this really does is that when Immigration is notified a person has been arrested or is under investigation the decision maker the BVE ‘should be considered for cancellation’. That is in an administrative sense, the delegate should not gloss over visa cancellation but should make a reasoned assessment in each case as to whether or not the BVE should be cancelled. For example is a minor case of arrest like street offence, disorderly conduct, drunk in a public place etc, then the delegate would decide not to proceed to visa cancellation. Interpreting the direction as a requirement that a visa be cancelled or as a presumption that the visa ought to be cancelled would be an improper exercise of power of a type identified in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, when a unanimous High Court said, with apparent approval (at ):
“26.In Khan v Minister for Immigration and Ethnic Affairs, Gummow J considered a migration appeal brought in 1987, when such appeals were decided under the AD(JR) Act. His Honour construed an improper exercise of power as including a reference to an exercise of a discretionary power in accordance with a rule or policy, without regard to the merits of a particular case. His Honour found that in considering all relevant material placed before him, the Minister’s delegate was required to “give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy”.
So once the primary consideration is assessed, should the delegate move to positively consider visa cancellation then the delegate then is guided to look at the Secondary considerations. These Secondary considerations are broad:
“7. Secondary considerations
(1) In deciding whether to cancel a non-citizen’s Bridging E visa, the following secondary considerations must be taken into account:
- the impact of a decision to cancel the visa on the family unit (such as whether the cancellation will result in the temporary separation of a family unit);
- the degree of hardship that may be experienced by the visa holder if their visa is cancelled;
- the circumstances in which the ground for cancellation arose (such as whether there are mitigating factors that may be relevant, as well as the seriousness of the offence, the reason for the person being the subject of a notice (however described) issued by Interpol, or the reason for the person being under investigation by an agency responsible for the regulation of law enforcement);
- the possible consequences of cancellation, including but not limited to, whether cancellation could result in indefinite detention, or removal in breach of Australia’s non-refoulement obligations, noting that a decision to cancel a Bridging E visa does not necessarily represent a final resolution of a person’s immigration status;
- delegates may also consider any other matter they consider relevant.”
One case conducted by the writer in the AAT was successful in overturning a BVE cancellation when the holder was charged with (but not convicted of) an assault charge arising out of a domestic violence situation (Re Zhang Case No 1515499, 24 November 2015). The fact that the client may have faced a long period in detention was a factor as well as the fact that the charges were at the lower end of the scale. Here are some useful comments by the Member:
“24…The Tribunal considers the Direction is a guideline and it will interpret the
Direction on the plain meaning of the wording in the Direction.
54…What ultimately has weighed on the Tribunal is that given the nature of the first Charges, the Tribunal does not consider it to be the intention of Parliament that a person in the circumstances of the applicant should be denied his liberty for an extended period of time.”
BEST INTEREST OF CHILDREN
What is not mentioned in the above article is the interest of children. As always the interests of children are paramount and cancelling a BVE leaving a family separated would be a strong factor in favour of not cancelling a visa. This issue is addressed in the Direction but is not dealt with in this article.
ONCE CANCELLED NO OTHER BRIDGING VISA CAN BE GRANTED
To create a real regulatory noose, the Schedule 1 criteria for the BVE states once a BVE is cancelled based Reg 2.43(1)(p) & (q) no further BVE can be applied for – see paragraph 1305(3)(g) of Schedule 1:
REVIEW TO THE ADMINISTRATIVE APPEALS TRIBUNAL
What the above means is that the former visa holder would remain in detention while the BVE remains cancelled. Hence this application for review to the is Tribunal is the only pathway to end detention. Once a BVE is cancelled the person goes into detention.
Probably then the former BVE visa holder is then a detainee and is governed by Reg 4.10 (2) which reduces the time limit for appeal to 7 working days after a detainee gets notice of the decision. Reg 40.10(2) reads :
“However, the period in which an application by a detainee for review of a Part 5-reviewable decision must be given to the Tribunal:
(b) in any other case — starts when the detainee receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received.”
Some further practice points
Anecdotal evidence is emerging that evidence is being withheld from applicants even though it is being supplied to a tribunal. In a separate article the writer has set out a letter that ought to be written to tribunal to restrict the matters under consideration in at the hearing to what is either disclosed to the applicant before the hearing or contained in the refusal letter form the delegate.
It is essential that application be made under s 362A for all written material given or produced to the tribunal.
Section 362A Applicant entitled to have access to written material before Tribunal
[362A] (1) Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.
There is a tribunal form being form (form 16) to make this request.
In the description of the material one writes :
“All written material given or produced to the Tribunal for the purposes of the review and without limiting the generality of that request such material to include the DIBP file or files and the Tribunal file, all communications to the tribunal, letter, electronic, email or otherwise from DIBP or anyone else or any authority regarding the applicant or touching upon the applicant and similarly any such communications from the tribunal.”
If one has doubts about whether the tribunal has properly complied with that request then on judicial review one needs to subpoena records from the tribunal, DIBP and if relevant, the state police or the federal police.