May 5, 2021

Visa cancellations – did the decision maker do what they were supposed to?

A case from December 2017 looks at what giving “proper consideration to matters” means

An interesting case was decided in the Federal Court of Australia with judgment handed down 21 December 2017. West Aussie Migration would like to thank Peter Bollard from Lewis & Bollard for bringing our attention to this case from his widely read newsletter, Peter Bollard’s Migration Newsletter.

Flick J considered, among other findings, what it means to ‘express findings with respect to certain considerations’. This case should serve as a warning to those making these types of decisions at the newly named Home Affairs department encompassing the Department of Immigration and Border Protection, that there has to be more than a mere recitation of ‘I have considered the evidence’ or similar.

Flick J made it clear that the delegated decision maker must make a finding on whether the particular statement should be accepted as credible and also the reasons for doing so, rather than just rehashing what the submissions of the applicant were.

Austlii has a version of the judgment that you can access for free with the citation being Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 (21 December 2017): Click here for the decision on Austlii

The facts are described as follows: ‘On 11 August 2016 [Mr Buadromo] was convicted …[and] was sentenced to a 12 month term of imprisonment. On 4 November 2016, Mr Buadromo was advised by the Department of Immigration and Border Protection that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“Migration Act”)’.

So what did the Federal Court find? In effect, Flick J found that the Assistant Minister, the decision maker in this instance, was required to go on and make a finding as to whether the reasons and explanations given to explain the applicant’s past criminal conduct, what impact the visa cancellation would have on him and other matters, was a truthful explanation or an explanation that should be accepted as a genuine explanation. Some edited quotes from the judgment are extracted below to show what this meant.

‘A finding that if Mr Buadromo was sent back to Fiji it would “affect [his] mental and physical health” and that he would “likely suffer hardship in readjusting to life in Fiji” falls short, with respect, of a finding made in respect to the claims made by Mr Buadromo that “it will be ‘impossible’ for him to find work in Fiji”. Such statements cannot be construed as “implicit findings” that the Assistant Minister accepted the claims as made. The fact that a finding was made in the last sentence and such findings as are made [elsewhere], arguably fall short of resolving the claims made by Mr Buadromo.’

The judgment also states that ‘It is the failure to make such findings, and the fact that such findings are “missing” from the reasons provided, which exposes the incompleteness of the Assistant Minister’s assessment of the claims made by Mr Buadromo and the fact that he did not give “proper, genuine and realistic consideration” to these matters.’

Flick J goes on to state that ‘A statement by a decision-maker that “I have listened to everything that you have said” falls short of a statement that “I have listened to everything that you have said and accept” (for example) “that you will not be able to ‘provide’ for the family”.’

Flick J concludes that ‘the Assistant Minister’s assessment pursuant to s 501CA(4)(b)(ii) of the Migration Act as to whether there was “another reason why the original decision should be revoked” has miscarried because he failed to give proper consideration to matters that were identified in the statement of reasons as steps in the decision-making process.’

What is the takeaway from this case? Situations such as this require the decision maker to look at a variety of factors and then weigh them against each other when deciding whether to affirm or revoke the decision to cancel a visa. This is on the specific circumstances of the applicant and will involve giving weight to various factors and then making a final decision. This case is an example that the decision maker must turn his mind to such factors and come to some kind of conclusion, not merely restate the submissions as given to him.

As always, West Aussie Migration is at the forefront of the constantly changing landscape of Australian Migration Law, and we will give you the accurate and timely advice you need to get the outcomes you want. MARN 1387008.