CVN17 v Minister for Immigration and Border Protection

In CVN17 v Minister for Immigration and Border Protection, the applicant’s Special Category (Temporary) visa (Subclass 444) was cancelled by the Minister under s 501 (3A) of the Migration Act 1994 (mandatory cancellation) for the offences he committed as an adult. The applicant was convicted of a number of offences, his last conviction being Recklessly Causing Serious Injury for which he was sentenced to 3 years imprisonment.

The AAT affirmed the decision of the Minister on the grounds based not only on the offences the applicant committed as an adult but also the applicant’s alleged conduct as a child.

The applicant applied to the Federal Court for judicial review of the AAT’s decision.

Jurisdiction Error Found 

The Federal Court found that there was a jurisdictional error in the Tribunal’s decision for the following reasons:

  • The applicant was 9 years of age when he committed criminal offences relating to “burglary with breaking” and “common assault”. With respect to such offending, the rationale is that a “child aged fourteen years is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks the capacity for mens rea.”[2]

  • The rationale is a matter of a fundamental common law principle (i.e. doli incapax) and to disregard the principle in the process of administrative decision-making would be bad as matter of public policy.

  • Further, the alleged offences were never contested before a court and no conviction was recorded. The Tribunal relied on the material containing “admissions” made by the 9-year-old applicant to which the Australian Law Reform Commission has stated in their Report No 84 that it “should not be assumed that statements made by young children in the presence of police and parents are reliable…”. Therefore, there was an error in treating such materials as if it established that the applicant had committed the above stated offences, since there was “no logical connection between the evidence and the inferences or conclusions drawn...”

Contesting former visa holder’s conduct as a child

The Federal Court’s decision must be given careful consideration as it does not mean that the Tribunal cannot take into account evidence about a former visa holder’s conduct as a child. Rather, the evidence pertaining to the conduct must have some relevance and logical connection in the course of the Tribunal’s decision-making process.

In CVN17, by taking into consideration of the applicant’s alleged criminal conduct as a child, the Tribunal arrived at a decision that lacked logical connection in its findings, and was irrelevant to the applicant’s pattern and history of offending.  

Key Takeaway

The important lesson to be learnt from CVN17 is that taking irrelevant considerations into account can act as a form of a jurisdictional error.  Therefore, it is the duty of the Tribunal to treat evidence relating to sensitive matters cautiously, and acknowledge the limits of the materials before them including its cogency and reliability.

How Can We Help You?

Meeting the character test subject to mandatory cancellation of a visa is one of the most difficult criteria to prove in immigration matters. If you require assistance with satisfying the character test, please call us now!

At Agape Henry Crux, our lawyers are well trained to handle highly complex matters so book one of our lawyers to seek professional advice now by calling 02-72002700 or email us to book in a time at info@ahclawyers.com.  We speak fluent English, Mandarin, Cantonese, Indonesian and Malay. If these aren’t your language, we can also help you arrange an interpreter.

 


[1] CVN17 v Minister for Immigration and Border Protection [2019] FCA 13

[2] RP v The Queen