the blog of Sentry Law

Permanent by nature, but not by name: should Special Category Visa holders be subject to onshore cancellation under s 116 of the Migration Act?

Joel McComber
joel@sentrylaw.com.au
24 February 2020

As we’ve previously addressed at length, New Zealand citizens hold somewhat of a peculiar position within Australia’s system of migration.

Not only do New Zealand citizens make no obvious application for a visa when they enter Australia (for the most part), they are (again, for the most part) granted a visa almost invisibly. That visa, the Special Category (subclass 444) Visa, is in itself peculiar because it is a temporary visa of indefinite duration. That is to say, a New Zealand citizen infant who arrived in Australia in 2005 and does not subsequently depart could hold a temporary visa for upwards of 80 years.

There are some significant consequences that result from the Special Category Visa being a temporary visa. One relatively obvious consequence is that New Zealand citizens do not have the same entitlements to social security payments as other long-term Australian residents.

One less obvious consequence is that New Zealand citizens who have lived in Australia for decades can have their visas cancelled under s 116(1)(e) of the Migration Act 1958 while they are in Australia, a risk that permanent visa holders are not exposed to.

Section 116(1)(e) is one of the more expansive cancellation powers conferred on the Minister responsible for administering the Migration Act 1958. It confers on the Minister (and the Minister’s delegates) a power to cancel a visa held by a non-citizen in circumstances where the decision-maker is satisfied that the non-citizen’s ongoing presence in Australia might be a risk to the health and safety of the Australian community. As we have previously written above, that is a very low threshold of satisfaction which, in effect, places any temporary visa holder charged with a criminal offence in Australia at risk of cancellation.

Permanent visa holders are not exposed to this risk as permanent visas cannot be cancelled under s 116(1)(e) while their holder in Australia. This is because, as Prime Minister Scott Morrison indicated during his tenure as Minister for Immigration and Border Protection, the impact of cancelling a permanent resident’s visa are more significant than the cancellation of a temporary visa.

However, while Mr Morrison’s sentiment may generally ring true, it does not account for the peculiar nature of the Special Category (subclass 444) Visa. Many New Zealand citizens ordinarily resident in Australia for decades have had their visas cancelled under s 116(1)(e), notwithstanding that their circumstances are almost far more similar to permanent visa holders than temporary visa holders. Many New Zealand citizens had their visas cancelled solely on the basis that they have been charged with, but not yet convicted of, criminal offences, notwithstanding that they have lived in Australia for decades (and, in many instances, since infancy).

That does beg the question—if Mr Morrison considered there to be sufficient reason to protect permanent residents from the risk of cancellation under s 116(1)(e) of the Migration Act 1958, does it not also make sense to protect New Zealand citizens, many of whom have been residents of Australia for decades, from the risk of onshore cancellation under s 116(1)(e)?

This line of reasoning is only strengthened by the fact that, in many instances, it is only in consequence of a New Zealand citizen having temporarily departed Australia since their arrival that they are exposed to a risk of cancellation.

A Practical Example

Consider two New Zealand citizens who arrived in Australia as infants in 1983, before wide-ranging amendments to the Migration Act 1958 reformed Australia’s immigration system. Both of those children were permanent residents on their arrival in Australia.

One of the children, Matthew, has not left Australia since his arrival in 1983. He now holds what is called an ‘absorbed person visa,’ a permanent visa that was automatically granted to him on 1 September 1994.

The other child, Christopher, did not leave Australia until 2013, when he took a short trip to Bali to attend his best friend’s wedding. Like Matthew, Chris was automatically granted an ‘absorbed persons visa’ on 1 September 1994, but because that visa only allows a person to remain in Australia (and not re-enter Australia), that visa ceased on his departure from Australia and on his return he was granted a Special Category (subclass 444) Visa.

Christopher is now exposed to the risk of cancellation under s 116(1)(e), whereas Matthew is not.

Now, a keen observer will note that just because the Minister has the discretionary power to cancel a visa under s 116(1)(e) does not mean that the power will be exercised. Indeed, the Department’s policy requires delegated decision-makers to consider the purpose of a non-citizen’s travel to Australia and the hardship that would be caused (to both them and their family) if the visa were to be cancelled.

However, consider a situation where, due to an inter-related combination of deteriorating mental health and drug-misuse, Christopher falls out of contact with his family and becomes homeless. He is charged with a number of drug-related offences and then is arrested for a relatively serious violent offence (say, assault occasioning bodily harm). He is held in remand because he does not have a fixed address to be used for a bail application.

While in remand Christopher receives a letter from the Department of Home Affairs. It is a Notice of Intention to Consider Cancellation under s 116(1)(e) of the Migration Act 1958. Chris is confused because he didn’t even realize he had a visa that could be cancelled. A few days later Chris is granted bail because a residential rehabilitation facility has accepted him for placement. He is bailed to that facility.

In the meantime, Chris forgets all about the Notice of Intention to Consider Cancellation and does not respond to it. Eight weeks later, having heard nothing back from Chris, a delegate decides to cancel Chris’s Special Category (subclass 444) Visa. They enquire with Queensland Corrective Services about where Chris is currently located and they are provided with his bail address—the residential rehabilitation facility, and the Department sends the Notice of Cancellation to that address.

What the Department does not know is that Chris was removed from the residential rehabilitation facility the previous week after getting into an altercation with another resident.

The Notice of Cancellation gets sent to the residential rehabilitation facility on Friday 1 April. Under s 2.55(3)(c) and s 2.55(7) of the Migration Regulations 1994 Chris is taken to have received the Notice of Cancellation on Tuesday 12 April 2019. Under s 4.10(1)(b) of the Regulations, his period for applying to the Administrative Appeals Tribunal ends on Thursday 21 April 2019. However, on Thursday 21 April 2019 Chris is sleeping rough and has no idea that his visa has even been cancelled.

Four weeks later, Chris is arrested again for possession of methamphetamine. After his arrest, police identify that he is an unlawful non-citizen and he his handed over to the Australian Border Force, who detain him in immigration detention. As Chris has missed the period for applying to the Administrative Appeals Tribunal, he has no avenue other than to be removed from Australia to New Zealand, a country he hasn’t lived in for 35 years and since he was an infant.

Or consider an even more harrowing situation in which Christopher does respond to the Notice of Intention to Consider Cancellation and was not granted bail. Despite his response, the Delegate decides to cancel his visa and sends the Notice of Cancellation to the prison.

In order to lodge a valid application for review with the Tribunal within the prescribed time frame, Chris not only needs to file a valid application in the Tribunal (which is no small feat in itself within the restricted environment of a prison), but he also needs to pay at least half of the AAT’s full filing fee (full fee currently $1,764.00) within that period seven working day period.

Chris does not have that kind of money, and even if he did have it on the outside he wouldn’t be able to get it paid to the Tribunal within time. As Chris has fallen out of contact with his family he has no ability to pay the Tribunal’s filing fee and, therefore, cannot lodge a valid application. Chris will therefore be taken into immigration detention on his release from remand and is likely to be removed.

Meanwhile, Matt could have committed the exact same offences and made the same mistakes as Chris, but he would not be exposed to the risk of cancellation under s 116(1)(e). But for attending his best friend’s wedding in 2013, Chris would not have been exposed to the risk of cancellation.

Conclusion

Ultimately, it is only through amendments to the Migration Act 1958 that changes can be effected to protect New Zealand citizens (or, at least those New Zealand citizens who have been ordinarily resident in Australia for long periods) from the risk of cancellation under s 116(1)(e).

It is not just the risk of cancellation that is an issue, but the systematic impediments that often stand in the way of people in the criminal justice system exercising their rights to review decisions made under the Migration Act.

As always, if you or someone you know has had their visa cancelled, it is important to seek legal advice as quickly as possible as strict time frames apply. Sentry Law is always happy to provide free procedural advice in relation to the relevant time frames and steps for reviewing or appealing migration decisions.

Remember, the Department of Home Affairs never misses the opportunity to cancel a non-citizen’s visa under the powers conferred on them by the Migration Act, so non-citizens should never miss the opportunity to exercise their rights to review those decisions (those rights also being conferred on non-citizens by the Migration Act).

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