Two bites of the cherry ?

Rascovici vs Minister for Immigration – report by Staff Writer Daniel Lane 

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Migration Case Law Updates

Background

  1. The case resolves around section 501 of the Migration Act. This section speaks to the issue of the decision maker in determination of matters of granting someone a visa having discretion to rely on the applicant’s previous criminal records or not when coming up with that determination.
  • The applicant in this case therefore made the application averring that the respondents erred in law by failing to recognize that the decision by the High Court in the case of Minister for Immigration and Border Protection vs. Makasa which had departed from this ground of considering previous criminal records of an applicant when seeking grant of such a visa.

Makasa and Stare decisis

  • The bone of contention here is therefore the exact effect of the Makasa case. Does the decision in the case mean that subsequent cases with similar facts or issue have to follow that decision? This invites our memories to go back to the long existing principle of stare decisis.
  • This means that all judicial decisions shall be informed by previous judicial decisions, higher courts and authorities. The applicants were therefore faulting the decision maker in the tribunal for failing to follow this position set in the Makasa case.

Response from the Ministry

  • Delegate of the Minister had earlier given the applicant some sort of warning when they engaged in criminal conduct. The warning basically was that indeed the delegate had overlooked the applicant’s first criminal records and had exercised their discretion to not cancel the applicant’s visa application. However, he made it clear to the applicant that if he repeats himself on this conduct, any visa granted by the minister was consequently be revoked by virtue of the delegate exercising their discretion to base the decision on the applicant’s previous criminal records.
  • There was a cancellation of the applicant’s visa later on because he had been accused and convicted of a number of counts for different offences. Moreover, the warning that had been given by the delegate required the applicant to disclose his previous criminal records.
  • The applicant had failed to do so in his subsequent application for a visa. The delegate had proceeded to refuse the application on the grounds that the applicant had failed to meet the character test. This therefore formed a very concrete ground for the delegate to exercise their discretion under section 501.

Tribunal’s error overlooking Makasa

  • Applicant’s counsel during the hearing submitted that the decision in Makasa should have been heavily relied and that the tribunal was wrong in placing so much weight upon earlier offending of the applicant in responding to his application for visa.
  • Counsel for the ministry on the other hand submitted that the applicant had found himself in this situation because of his conduct and the fact that he was not honest in terms of not disclosing his previous criminal records. In addition, he submitted that unlike the factual circumstances in Makasa case, the present case had subsequent circumstances which revealed that indeed the applicant had failed to meet the character test.
  1. The court in this application therefore gristly upheld the tribunals decision by asserting that nothing in the Makasa decision can be said to imply that the decision maker was not at liberty of exercising their discretion not looking into the previous criminal records of a person in determining whether to grant an applicant a visa or not. It stated that this is generally a compliance with the applicable directions stated in section 499 which also speaks to the issue of looking into the seriousness of a non-citizen’s criminal offending or any other conduct.

Conclusion

  1. The court in conclusion set it clear and held that the applicant through his counsel had wrongly interpreted the decision in Makasa by the High Court.
  1. That nothing in that decision suggested that discretion of the Minister of their delegate was barred from exercising their discretion of looking into previous criminal records. It therefore agreed with the submissions made by the ministry.

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