With zeal, I introduce to you a judicial series that will review, prompt ideas and demonstrate how certain court cases, statutes, legal philosophies (jurisprudence), and everything in-between affect you and bear relevance in our society.

This series will be a collaboration between Simeon (the creator and author of The Levine Lowdown) and me, Guest Author, Daniel.

I understand that those unfamiliar with ‘law’ as an overall concept may feel it is daunting, and nothing makes any sense. I agree legal jargon is complicated to the layman; that is why this series will be written in plain English and aimed at showing the law’s relevance to our society. Throughout this series, I encourage you to express your thoughts and feelings and provide feedback to assist us in improving our future posts.

The content in this series does not constitute legal advice and should not be relied upon as such. We encourage you to seek out a qualified legal professional if you need legal advice. Rather, this series aims to encourage conversation about the law and allow individuals to express their personal opinions surrounding legal matters.

Immigration, Immigration, Immigration

Introduction

One year after the significant COVID-19 restrictions in Australia, the current state of the nation feels sort of awkward. The COVID-19 cases have dwindled, the paranoia surrounding COVID-19 is diminishing, and every day in Sydney, I observe fewer and fewer people wearing facemasks on public transport (despite it being mandatory and a finable offence).

However, the United States is suffering, Brazil is suffering, and the virus continues to evolve to become invincible to the vaccines we have developed. 

Each state’s Premiers are personally proud of their low case numbers and are scared of flying fellow Australian residents back home over fear it will spark a new outbreak – how un-Australian.

But often, the people we do not hear about are the migrant workers on visas in Australia. These are people who have stayed within our nation during COVID-19 and contributed to it (through working) and wish to continue to stay.

The Department of Home Affairs typically grants working visas up to 12 months; however, depending on your passport, the type of working visa, and any other exceptional circumstances, this can be extended even longer.

Due to COVID-19, thousands of visa-holders have wished to prolong their stay, as Australia offers a safer environment that is almost COVID-free. They fear going back to their home country, which has practically been riddled by a death wave. The question of whether these people could claim status as a refugee if COVID is considered a ‘natural disaster’ would be an interesting topic to explore in a later post. Nonetheless, these individuals wish to remain in Australia to be protected from the virus. Compared to the United Kingdom, which has had 63,826 cases per million people (whereas Australia only has 1139 cases per million people), Australia has done relatively well in putting a halt to the virus’s spread – no wonder why visa-holders wish to prolong their stay.

The fact that these immigrants wish to stay in Australia, among other things, has drastically increased the number of court cases filed against the Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs. Five of the thirty-eight cases yet to be heard by the High Court are concerning immigration or visa matters. Considering the appellant (capacity to hear appeals) and original jurisdiction (cases which are primarily concerned with the court) of the High Court to hear matters concerning practically anything, I would consider five out of thirty-eight a high volume of court cases from a particular area of law. I only expect this to increase over the next five years.

This is exciting for all the legal geeks out there, myself included, and I expect there to be crucial developments in immigration law over the next few years. However, the current dilemmas surrounding working visas and individuals wishing to continue to stay in Australia during COVID will likely not be heard by the High Court this year. This is because most cases, where the High Court has appellate jurisdiction to hear the matter, require numerous appeals until it reaches the High Court, which can take a few years. Whereas the cases which the High Court has original jurisdiction over typically do not include visas and immigration.

Some of you may have forgotten that the High Court totally existed (I don’t blame you) as the last majorly publicised rulings were the cases concerning Geroge Pell and the raid of the ABC Offices (and subsequent properties); which were published almost a year ago!

In this week’s edition I will outline an immigration case stemming back to 2017 where there was a cancellation of someone’s visa on the grounds of them having a substantial criminal record.

The Case: Minister for Immigration and Border Protection v EFX17 [2021] HCA 9

Useful Details

– The judgment for this case was delivered on 10 March 2021.

– The case concerns an Afgan citizen and refers to them as ‘EFX17’ as they are considered an alien (a non-citizen) – this is standard legal practice.

– Throughout this section, I will refer to the Minister for Immigration and Border Protection as ‘the Minister’. In essence, this refers to that entire Government Department, not the individual minister.

Initial Facts

– In 2009, EFX17 arrived in Australia as an Afgan citizen and was granted a protection visa.

– In 2016, he was convicted of ‘committing acts intended to cause grievous bodily harm (s 317 of the Criminal Code 1899 (Qld)) and received a seven-year sentence.

– As EFX17 had a ‘substantial criminal record’ of more than 12 months imprisonment, the Minister cancelled EFX17’s visa. This ground to cancel a visa upon is set out in the Migration Act 1958 (Cth) ss 501(6)(a), 501(7)(c).

– The case primarily considered the failure of the Minister to follow the administrative procedure in advising EFX17 of the cancellation of their visa, per s 501CA(1) of the Migration Act 1958 (Cth). 

– EFX17 spoke broken English and required a Hazaragi interpreter to translate the written notice of the Minister’s decision to cancel his visa.

The Law

Section 501CA details:

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person)

(2) …

(3) As soon as practicable after making the original decision, the Minister must:

  1. give the person, in the way that the Minister considers appropriate in the circumstances:
    1. a written notice that sets out the original decision; and
    1. particulars of the relevant information; and
  2. invite the person to make representations to the minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.’

This is complicated to understand all at once, but in essence, this section says that when the Minister cancels someone’s visa, they must notify that person and provide them adequate time to object to the visa’s cancellation.

Procedural History

The case was heard in the Federal Circuit Court, appealed to the Full Court of the Federal Court, then EFX17 applied for a notice of contention to the High Court of Australia.

Notably, when the case was in the Federal Circuit Court and Full Court of the Federal Court it was concerned with:

  1. Whether the minister had to personally consider the incapacity of EFX17 (as he lacked practical English literacy skills) and whether the minister had to aid EFX17’s understanding of the visa’s cancellation.
  2. Whether the person who delivered the documents regarding the visa cancellation was delegated power to act in this way.
  3. Whether the respondent was ‘given the required notice, particulars and invitation.’

– (If you wish to read the case summaries from these lower courts and view the Judges’ reasoning regarding these questions, you can access them on: 

– EFX17 v Minister for Immigration and Border Protection (2018) 341 FLR 286; and 

– EFX17 v Minister for Immigration and Border Protection (2019) 273 FCR 508).

Present Case

When the case reached the High Court, the primary question for the court to consider was:

– Whether the minister is required to expressly specify a date in the notice by which representations must be made by the respondent.

Typically the Minister provides a 28-day time limit for the person to make representations. However, on EFX17’s notice, the time was not specified, which confused the respondent regarding when the 28-day period began and how long until he had to make representations.

As the Minister did not explicitly detail when the 28 days began in the notice, and this created confusion for the respondent, Kiefel CJ noted:

‘It can hardly be supposed that Parliament intended that a person whose visa has been cancelled would not be given the information that would reveal the date by which representations must be made if the person is to avoid the strict consequences of failing to make representations’.

Ruling

The Court held that the period which the respondent is invited to make representations must be expressly referenced to, or referenced to by other means, such as specifying the period begins ’28 days from the day you are handed this document.’

The Minister had to pay the court costs of the respondent (EFX17).

Concluding Thoughts

In summary, in the initial case held in the Federal Circuit Court, the court found in favour of the Minister, and when it was appealed to the Full Court of the Federal Court, the appeal was dismissed. However, EFX17 submitted a notice of contention to the High Court, meaning the previous courts’ outcome was going to remain the same; however, they disputed the relevance of expressly including the deadline for representations in the notice. 

On the one hand, I ask why did EFX17 pursue the case under a notice of contention as it did not aid their party; instead, it just clarified statute law by addressing the semantics of whether the Minister should include/not include the dates on the notice. Based on this, I feel the case waste of resources and time by the courts.

However, the case itself is beneficial to some extent and for a particular type of stakeholder. The decision that the Minister must expressly reference the final date by which representations must be made aids individuals in similar situations to EFX17; those who speak a foreign language are not highly educated. It could be argued that the case clarified the law and made it more just for foreigners who enter Australia by ruling that the Minister must expressly reference a specific date in the notice of cancellation. 

But, I still believe the costs do outweigh the benefits. The Court could have decided to grant special leave to a higher importance case (as the case had no actual effect on the parties positions before the case).

This case does spark various thoughts regarding the facts of the matter:

– Despite it being solidified in the statute, should the 28 day period to make representations regarding visa cancellation be extended?

– If you are charged and sentenced to a 12 month+ sentence for a crime of conspiracy, complicity or intent (as long as it is not an act of terrorism), should that allow the minister to cancel a protection visa automatically; should it only be reserved for those who have physically acted and committed an offence? Do you think immigration law is too strict on these circumstances?

Thank you for reading the first article in this new series! Let us know your thoughts in the comments below or through the blog’s social media pages which can be found in the ‘contact’ section of the blog!

Appendix

Protection Visa→ where a person enters Australia on a valid visa and wishes to seek asylum in Australia can apply for a protection visa that allows them to stay in Australia permanently as long as the visa requirements are fulfilled.

Notice of Contention → where ‘the respondent wishes to contend that the decision of the Court below should be affirmed but on the ground that the Court below erroneously decided or failed to decide some matter of fact or law’. In essence, this is a document filed with the court from the respondent (the person responding to the case claims against them; the defendant) accepting the previous case’s verdict but outlining that the court overlooked the law or specific facts that should have been given more weight.

One thought on “Let’s Get Legal: Immigration, Immigration, Immigration

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