Administrative Law - Mr James Black - Case Study Example

Letter 1 (Body/Text of Letter) This is in connection with the matter referred to us about the case of Mr. James Black. On July 20, 2009, Mr. Black’s tourist visa to visit the country (Australia) was revoked by the Delegate of the Minister of Immigration. The said revocation was acted upon without first giving due notice to Mr. Black. We are now consulted about the possibility of filing an action or petition in court for the review of the subject decision of the Delegate of the Minister of Immigration. It has to be noted that since his arrival in Sydney last May, Mr. Black has been allegedly involved in preparations for anti-war protests at the Australian Labour Party national conference. In revoking the said visa, security concerns were cited, together with an imputation of a reasonable suspicion that Mr. Black would incite discord in the Australian community. It was also reasoned out that the Delegate was acting on the basis of Section 501 (2) of the Migration Act 1958 (Cth)1, the law on the matter, after receipt of an advice from the Australian Security Intelligence Organisation. As a backgrounder, the statute and its relevant section mentioned above, that is, the Migration Act Section 501 (2), provides that the Minister of Immigration or his Delegate has the power or the authority to cancel a visa if he (the Minister or his Delegate) has reasonable grounds to suspect that the person who was granted a visa does not pass the required character test and that such person does not pass the character test to the satisfaction of the Minister or his Delegate. It is opined that the underlying justification in the action of the Delegate of the Minister of Immigration is the so-called character test which we believe is a misplaced theory to be applied in the case of Mr. Black. It boggles the mind to consider an individual who is against war to be of questionable character. Logic will surely suggest that a person who is anti-war is naturally in favour of peace and it is hard to imagine that he who sows peace will incite discord or disorder. The most advisable legal remedy to take is to file with the Federal Court of Australia in this jurisdiction a petition for review on certiorari with a prayer asking that the decision of the Delegate of the Minister of Immigration cancelling the visa of Mr. Black be quashed, reversed and/or set aside and that the said visa be reinstated or that a new visa be granted in lieu of the previously cancelled one as administrative and official processes may allow or warrant. These procedures find basis in the case of Haneef v Commissioner for Immigration and Citizenship.2 In paragraph 5 of the said jurisprudence, under the caption The Jurisdiction of the Court, it was explicitly ruled that Section 476A of the Migration Act provides that the Federal Court has original jurisdiction over a migration decision if, and only if among others, it has the character of a privative clause or purported private clause decision rendered by the Minister personally. In accordance with the rules of the Federal Court of Australia, information is likewise relayed in connection with the filing fee and other matters related to the filing of the action or petition. For the filing of the application, the prescribed Form 56A under Rule: Order 54 has to be filled up and accomplished. The filing fee is pegged at seven hundred eighty five Australian dollars since the paying party is an individual person and not a corporation which is liable to pay one thousand eight hundred eighty one Australian dollars. Be it noted that the charge may be waived if it can be shown that payment thereof may result in the financial difficulty of the applicant, meaning Mr. Black. Form 56A may be downloaded.3 All the requirements regarding each data and information as pre-requisites of the filing of the application are set forth and outlined in the said Form 56A. Nevertheless, this office will assist the applicant in connection therewith upon the engagement of our legal services particularly considering the fact that certain circumstances that have to be mentioned in the application form hinge on legal and procedural technicalities which have to be properly observed. As advance information, the website link under footnote 3 may be referred to for the guidelines in the filling up of the said form. It is also important to note that free or low-cost legal advice or services may be availed of by the applicant for which he may access through the website of the Court or from its website. Going into the merits and legal issues of the incidents now confronting us, it is hereby re-stated for easy reference that the Delegate of the Minister of Immigration has relied upon Section 501 (2) of the Migration Act in cancelling the visa of Mr. Black. Before further proceeding, it is important to observe that the bases for powers or authorities of the Minister or his Delegate should be understood as alternative and not cumulative. This is being stressed because the conjunction used is “and”. In short, a visa may be cancelled either because it is reasonably suspected that the visa holder does not pass the character test or that such holder does not pass the character test to the satisfaction of the Minister or his delegate. In using the character test referred to, it is necessary and imperative that the person under such test has or has had an association with someone else or with a group suspected to be involved in a criminal conduct. In the case at bar, it was never shown that Mr. Black was in association with another person or group of persons having or doing some criminal activity. Absent that, the test relied upon cannot be made a ground to cancel the visa. The criteria in order that any of the two character tests stated above may be applied are enumerated in sub-section (6) of Section 501 of the same Migration Act 1958. The said sub-section (6) enumerates four instances in the determination of whether or not the visa applicant or holder passes the test. Since Mr. Black is deemed to stay or remain in Australia, the first three situations do not apply and need not be discussed. The test for Mr. Black is found in the fourth and last instance. Here, the presumption is that the person to whom the visa has been granted and issued is allowed by the government to enter or remain in Australia. Such individual will be considered a significant risk if he falls under any of five specific circumstances. These are: (1) that he would engage in a criminal conduct or conducts in the country; or (2) that he would be harassing, molesting, intimidating or stalking another person in the country; or (3) that he would vilify a part or sector of the Australian community; or (4) that he would incite discord a in the Australian community or any part of segment of it; or (5) that he would pose as a danger to the Australian community, either by way of being liable to become involved in activities that are disruptive or violent. The first, second, third and fifth instances may not be discussed because the reasonable suspicion about Mr. Black being a security problem raised by the Delegate of the Minister for Immigration was that he would allegedly incite discord in the Australian community. This accusation is apparently referring to the fourth instance. Evidently, this was an expedient or convenient way to unreasonably justify the act of the Delegate in cancelling the tourist visa of Mr. Black. To our mind, Mr. Black can pass the test. He does not pose a threat or a danger to Australia or to its citizens and community as to qualify him as a suspect character. Mention was made of Mr. Black having been involved in the preparations for protests against war. These planned concerted activities were supposed or maybe deemed to have a connection with the national conference of the Australian Labour Party. This charge alone is not sufficient and will not stand in court. There is no proof or showing that the intended protests would be disorderly and would not be peaceful to the point that it would incite discord. As insinuated earlier, it is hard to reconcile that a person who is against wars is also against peace. Protesting does not necessarily mean inciting. Even if the act of inciting is established, there is still the need to prove that it is for the purpose of sowing discord to classify Mr. Black a security risk within the ambit of Section 501. References Form 56A. Application under the Migration Act 1958. (Versio:4 Rule: Order 54). Federal Court of Australia. [internet] Accessed October 12, 2009. Available at: Haneef v Commissioner for Immigration and Citizenship. [2007] FCA 1273 (21 August 2007) Federal Court of Australia. [internet] Accessed October 12, 2009. Available at: Sect - 501. Migration Act 1958. Commonwealth Consolidated Acts. [internet]. Accessed October 12, 2009. Available at: < http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html> Letter 2 (Body/Text of Letter) This pertains to the issue which has arisen from the decision of the Cabinet of the Executive Department of Australia to revoke the visas of all known foreigners who are activists in the anti-war movement leading to the conference of the Australian Labour Party. The legal opinion is being sought in view of the unsuccessful efforts of Mr. Black in all avenues of non-judicial review regarding the cancellation of his tourist visa. At the outset, it is necessary to deliver in this paper the known fundamentals of visa issuances and the policies of territories and jurisdictions regarding the same. Wise and unbiased opinions and requirements abound in international relations manifesting in unequivocal terms that the right to issue a visa is totally a prerogative of the host country.4 5 6 This precept is anchored on common sense and this is more so in cases of tourist visas. Logic will tell all and sundry that when one applies for a tourist visa to visit a foreign country, it is like asking permission from a neighbour to visit the house or residence of the latter. Whether or not the neighbour has or has no reasons, he can never be forced or be compelled to accept a visitor or even a stranger unless there is an underlying legal compulsion like a court order. As a comparison in the international scene, for example, it may be likened to a bilateral treaty or understanding whereby two countries agree that twenty medical doctors will be exchanged among the territories for epidemiologic research or study on, say, tuberculosis which is rampant in both. In short, there is an agreement to that effect among the two nations. Any agreement like such is deemed the law on the matter between the two territories. As a matter of fact, that right to deploy a qualified medical doctor may still be subject to certain conditions or circumstances like things which border on security, safety and health dynamics as is true in the case of European Union members. Hence, in the given illustration, Dr. X from State A goes to State B as provided for in the medical mission exchange treaty. Upon arrival in State A, Dr. X is found and diagnosed to be ill of a highly contagious disease which he must have contracted during his trip, State B can send back Dr. X to his home country on health reasons. Therefore, a visa, whether on the basis of a work permit or of a temporary residence or of a visit travel, is absolutely within the unilateral and exclusive rights and prerogatives of the territory which issues it or which is supposed to issue so. In view of the foregoing premises, it is but appropriate to convey the envisaged anticipation. Within this context, it is likewise hereby explored that the principles surrounding the issuance of a visa can sometimes become a political concern as may be determined by the leaders of the issuing state rather than a justiciable issue to which the wisdom of the courts do not apply. Today, there is not yet that one world government and one world judiciary dreamed by some. In the instant case, the Minister of Immigration has a wide latitude of discretion to cancel the visa of Mr. Black and to cause all the inconvenience unto him (Mr. Black). These are all embodied from Sections 500 to 503-D of the Migration Act. While, unfortunately, there is no specific provision that exactly and definitely prevents Mr. Black from taking a legal action for the review of the decision of the Minister of Immigration, the process of seeking that relief can be long and tedious, that is, in order to override the cabinet decision. Just to illustrate, information and sources of information may not be disclosed in migration proceedings like those provided for in Section 503-B of the Migration Act. This remedy can be conveniently utilized by the concerned administrative agencies in collaboration with the office of the Minister of Immigration and can be detrimental to the interests of Mr. Black. Recourses like this can be abused. That is so because a situation may arise where the Minister of Immigration will simply declare that in his opinion Mr. Black is a threat to national security based on information which he cannot divulge. Likewise, we are aware that under the subject law, mere opinion can be a basis to express security matters and which, in turn, can be presented as proof or evidence in court. In short, the legal battle can be one-sided not because the forums of justice in Australia are biased or prejudiced but because the obscurities of the law allow it. On the concern of the cabinet having decided that visas of foreigners known to be anti-war activists be revoked, this one has the colour of an executive policy or a political prerogative. In essence, that kind act of the Executive Department can be interpreted as one that is not a justiciable issue and which the courts cannot thus pass upon. Allowing judicial inquiry over the same may cause undesirable wrangles between two government departments. It will not be prudent to allow that scenario. To insist on the review powers of the judicial agencies over executive policies will be an invitation to a constitutional crisis between the said two branches of the Australian government. In the case of Haneef v. Minister for Immigration and Citizenship [2007] FCA 1273, for instance, Dr. Mohamed Haneef’s visa cancellation was voided by the Federal Court and the appeal of the government was even finally dismissed. However, the triumph of Dr. Haneef in court was an empty victory. While there were poignant calls for Dr. Mohamed Haneef, the main character in the highly controversial case, to return and further pursue his medical career in Australia, he opted not to and instead proceeded to Dubai. Why was that so? Dr. Haneef, while eligible, has to re-register with the medical board to practise in Queensland as announced by the Gold Coast Medical Association.7 But that process will surely encounter anew expected hindrances and stumbling blocks in the administrative bureaucracy. And Dr. Haneef is presumed to be aware of all those. In sum and on the basis of procedural lapses in the legislated processes, Mr. Black has a good case as far as concerning his efforts for the reversal and setting aside of the decision of the Minister of Immigration to cancel his tourist visa. To push through the same though will entail a protracted litigation that can render the reversal moot and academic as when, say, Mr. Black is already repatriated to England as in the case of Dr. Haneef. It is however herein being pointed out that the British government has a different bearing in Australia compared to that of India. Just the same, however, it will still be a matter between two sovereign states. The case can become an international news item and the conflict a press sensation and it is no question that media plays an important role in global political and social issues. Nonetheless, the risk is high. The claims of Mr. Black has good chances to stand tenable in the courts. The question is whether or not those claims will prosper in the true and real meaning of things. It is admitted that the right of abode or the freedom to choose where to stay or to live is a basic human right. However, this is available only to a citizen in his own country. Mr. Black has that liberty albeit the exercise of it cannot be imposed upon Australia where he does not belong as a constituent. The plight of Mr. Black is understandable as a human individual. On the other side, the Australian government has its own republican options and prerogatives. In the current controversy, the sense of balance has to determine which is paramount over the other. Mr. Black is the ordinary tourist in the land of kangaroos who happens to be zealous in joining anti-war redresses. On the other side, the Minister of Immigration is crusading for a feeling of security in favour of his country which is entitled to drive the point to its citizens and subjects that their homeland is quiet and safe. References America denies visa to Narendra Modi. Expressindia.com. [internet] Accessed October 12, 2009. Available at: < http://www.expressindia.com/news/messages.php?newsid=43432&from=520> Court Case and Return of Visa. Mohamed Haneef. Wikipedia. [internet] Accessed October 12, 2009. Available at: < http://en.wikipedia.org/wiki/Mohamed_Haneef> Dubai Marhaba Services. Dubai Visa Application For. [internet] Accessed October 12, 2009. Available at: < http://www.dvms.biz/images/VISA%20APPLICATION%20FORM-251007.pdf> Shafi, Kamran. Somebody made the point the other day that it was the prerogative of the mission of a country to issue or not issue visas to whom-ever. Absolutely right. The Brit visa shemozzle. DAWN.COM. [internet] Accessed October 12, 2009. Available at: < http://www.dawn.com/wps/wcm/connect/dawn-content -library/dawn/the-newspaper/columnists/14-the-brit-visa-shemozzle-again-609-zj-02> Read More