The assignment is to be written as a submission to your law firm, setting out both (1) the relevant and strongest grounds of review and (2) the most advisable avenues of review available. There must be correct and full citations to the relevant legislation and case law, as per the Australian Guide to Legal Citation.
This part requires advice on the availability of, and best options for, informal review, internal review, FOI, Ombudsman and tribunal review of the administrative decision.
This part requires advice on the possibility of challenging, via judicial review, the decision made by the original decision maker or relevant tribunal.
Your firm has been asked to represent Jack, 53, a Chinese-born man who came to Australia as a student in 1985 and was granted permanent residency in Australia after the 1989 Tiananmen Square massacre, but did not apply for citizenship. He later married an Australian citizen and has three children, aged 15, 18 and 19, who speak no Chinese and have never been to China. Last month, he was arrested under the newly-passed ‘foreign interference’ legislation after helping to organise a protest in Sydney against the US military alliance as part of a campaign by an international political party.
After the Home Affairs Minister’s delegate initially decided not to cancel Jack’s visa, the Minister cancelled it under s501A(2) of the Migration Act 1958 (Cth), on the grounds that the Minister reasonably suspected that Jack did not pass the character test set out in s501(6). Specifically, the Minister stated, by a ‘Notice of intention to consider cancellation of your visa under s501A(2) of the Migration Act 1958’ dated 3 August 2018, that ‘Jack has an association with a group involved in criminal conduct.’
The notice provided Jack with two days in which to comment or provide information on whether he passed the character test and, should the decision-maker reasonably suspect that he did not, on whether the decision-maker should exercise his or her discretion to cancel Jack’s visa.
In reply, Jack said his arrest was undemocratic, he was not a member of any foreign party and he had not been found guilty of any offence. Moreover, his wife and children, who would be severely impacted if he were deported to China, should be given the opportunity to make submissions to the Minister. He said he needed more time to respond and asked for access to the evidence and other relevant information being held against him.
In rejecting Jack’s submission, on 8 August 2018 the Minister, by letter, reiterated the reasons he gave in the notice for his decision, which can be summarised as follows:
On 12 July 2018, the Australian Federal Police charged Jack with the offence of ‘reckless foreign interference’ under s92.3 of the Criminal Code for engaging in conduct in collaboration with a foreign political party, while reckless as to whether that conduct would prejudice Australia's national security. The penalty for that offence is imprisonment for 15 years.
On 16 July 2018, a magistrate granted Jack bail, whereupon the Minister decided to cancel Jack’s visa urgently to avoid the risk that Jack would further endanger national security.
The Minister stated that he took this action on the advice of the Australian Security Intelligence Organisation and was not at liberty to disclose the contents of that advice.
The Minister stated that he considered Jack’s submission as to the impact on his Jack’s wife of Jack’s deportation to China, but not with regard to Jack’s children because they were teenagers and could each choose to stay in Australia.
Under the heading ‘Expectations of the Australian community’, the Minister stated: ‘I find that the Australian community would expect non-citizens to obey Australian laws while in Australia, and particularly not to prejudice Australia’s national security. Given the serious nature of his conduct, I conclude that the Australian community would expect that Jack should not hold a visa, notwithstanding his lengthy time residing in the Australian community and his substantial ties to the Australian community, including family ties.’
The Minister’s letter concluded that these community expectations outweighed the countervailing considerations in Jack’s case, ‘including the best interests of his children and the impact on his wife and other family members’… ‘Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Jack’s visa under s501A(2) of the Act’.
In one week, more than 10,000 people signed an on-line petition opposing Jack’s deportation. In parliament on 13 August 2018, the Minister defended his decision. He stated that he would ‘never permit family circumstances to override the government’s responsibility to protect national security, especially when the non-citizen was a known anti-government political activist acting on behalf of foreign interests’. He warned that any visa-holder who ‘got involved in similar political agitation’ should expect to be deported as well, regardless of their level of involvement and the impact on their families.
Relevant legislation, guidelines and cases
This assignment requires research to find the relevant legislation, guidelines and cases. In your submission, you must examine, apply or distinguish all applicable cases, including (but not limited to) the following recent decisions:
Viane v Minister for Immigration and Border Protection  FCAFC 116
ZCNR and Minister for Home Affairs (Migration)  AATA 2511 (20 July 2018)
(Both these cases were successfully argued (pro bono) by Jason Donnelly, a Western Sydney University lecturer and former Administrative Law student.)
Degning v Minister for Home Affairs  FCA 1152 (7 August 2018)
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