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Administrative law – migration – cancellation of visa under s501(3A) of the Migration Act (Cth) on character grounds – judicial review – requirement for decision-maker to engage in an ‘honest confrontation’ with the consequences of removal

In Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 165 (1 October 2020) the appellant (a 50-year-old man) was born in England but had lived in Western Australia since the age of three and never left.

It was not disputed that everything of importance to him was also in Western Australia and that he knew no one in England.

Following a conviction for several counts of unlawful and indecent assault and one count of sexually based offending against a child under the age of 16, the appellant’s permanent residence visa was cancelled by a delegate of the Minister under s501(3A) of the Migration Act 1958 (Cth) on the basis that he did not satisfy the relevant character test.

On the appellant’s release from prison on parole, the relevant parole board considered that his release “would not present an unacceptable risk to the safety of the community”. He was transferred that same day into immigration detention awaiting deportation to the United Kingdom.

The Minister declined the appellant’s request to revoke the visa cancellation and the appellant’s application for judicial review to the Federal Court was also dismissed.

By a majority of 2:1, the Full Court dismissed the appellant’s appeal.

The substance of the appellant’s complaint was that the Minister did not give adequate consideration to the mental health difficulties he would face if removed from Australia (the appellant had a history of depression, anxiety and self-harm).

McKerracher and White JJ dismissed the appeal on the basis that, as no other jurisdictional error had been established, the appellant’s central argument could only be accepted if the Full Court was to substitute its own conclusion on the merits (at [2] and [27]).

While struck by the evident harshness of the Minister’s decision not to revoke the cancellation of the appellant’s visa (at [27]), White J considered that the question of whether residual discretion should be exercised in the appellant’s favour was a matter for the Minister (at [38]).

Stewart J dissented and would have allowed the appeal. In so holding, his Honour applied the principle first outlined in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 at [3] to the effect that the exercise of character grounds visa cancellations under s501 carries with it an obligation of “real consideration” of the circumstances of the people affected, and that that obligation will not be satisfied by decisional checklists or formulaic expression.

Stewart J considered that the Minister’s reasons glibly and compendiously described the appellant’s claims and fears as “significant hardship” and failed to confront what was really being done to the appellant (at [89]). His Honour would have set aside the Minister’s decision and issued a mandamus for the Minister to consider the matter again according to law. While a lawful decision might still have the same outcome, the reality of the outcome on the visa holder must be confronted for the decision to be lawful (at [93]).

Anthony Lo Surdo SC is a barrister, arbitrator and mediator at 12 Wentworth Selborne Chambers, Sydney, Lonsdale Chambers, Melbourne, and Outer Temple Chambers, London, Abu Dhabi and Dubai. Theresa Power is a barrister at 12 Wentworth Selborne Chambers, Sydney.

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