Government departments must behave fairly.
It does not matter who you are or what you have done.
When a government employee makes a decision, they need to tell you why they made that decision, and they must give you an opportunity to respond to those reasons. If they don’t, then the decision will be set aside.
In migration law, this means the Immigration Department (“DIBP”) must give the visa applicant an opportunity to respond to any information that has been discovered, before they make a decision. This was recently illustrated in the case of the visa cancellation of Dr Suhail Durani who was imprisoned for 2.4 years for sexually assaulting a 19 year old girl whilst working in a hospital. As you might expect, his release from prison was swiftly followed by the initiation of his visa cancellation and he was taken into immigration detention. It sounds like a clear cut case however due to procedural fairness, the story doesn’t end there.
In this particular instance, the DIBP cancelled Mr Durani’s visa without issuing him any explanation, or giving him an opportunity to respond to the reasons that the DIBP felt his visa should be cancelled. Mr Durani immediately appealed the decision to cancel his visa to the Administrative Appeals Tribunal (‘AAT’) and won, having the initial decision to cancel his visa set aside.
In a rare move, the Minister for Immigration then personally overrode the AAT’s decision and reinstated Mr Durani’s visa cancellation, saying that not cancelling his visa would undermine the integrity of the Skilled Migration Program. The Minister’s legal authority to do this comes from s501A (2) of the Migration Act, which says that the Minister can personally set aside a decision of the AAT and cancel a visa if the Minister is satisfied that to do so would be in the ‘national interest’.
Mr Durani then appealed to the Full Federal Court who overturned the Minister’s decision. The Court stated that the severity of the conduct of the visa holder was irrelevant – in every case and for every person, procedural fairness must be afforded. The Court found that the DIBP and the Minister were required to give the visa holder notice of the grounds for cancelling his visa and give him an opportunity to respond to those assertions. In reaching their decision, the Federal Court relied on the High Court’s decision in the case of Minister for Citizenship v SZGUR (2011) 241 CLR 594. This judicial precedent clearly states that to remain within the rules of procedural fairness, a decision-maker must identify for the visa holder any critical issue that may not be apparent to the visa holder just from the nature of the decision, or the type of statutory power being used to cancel the visa. The Federal Court reasoned that the concept of ‘national interest’ is extremely broad, and that it might not be so obvious to a visa holder that the national interest might encompass something like the integrity of the Skilled Migration Program.
This case serves as welcome reminder to visa holders that the DIBP is required to follow the rules of procedural fairness, or its decisions will be set aside at the government’s expense. While, admittedly, the Minister can now simply begin the entire process again, cure the failure to obey procedural fairness and inform Mr Durani correctly of the grounds for his visa cancellation, Mr Durani’s ability to respond creates some opportunity for him to avoid his visa being cancelled.
Building convincing and legally correct submissions against your visa cancellation is a complex matter and should not be undertaken without guidance from an experienced immigration lawyer. Our immigration lawyers have years of experience making successful submissions to the DIBP, the AAT and the various Australian Courts. We have acted in administrative law matters in all Courts, including the High Court, and have a thorough and indepth understanding of what government departments can, and cannot do.
If you vis is refused or cancelled, the you need to seek advice ASAP – the timeline to correct it can be as little as 7 days from the date that the decision is made (usually 28 days).
Call us for a consultation today!