A Federal Court decision overruling the Immigration Minister’s decision to cancel a Brisbane man’s visa mid last year, has been overturned by the Full Federal Court last week.
Mas Eden’s visa was cancelled last year by the Minister using the power to cancel a visa under section 501(2) of the Migration Act because of a criminal conviction in 2011.
The Full Court reinforced the Minister’s powers to cancel Mr Eden’s visa finding the primary judge’s decision was affected by a jurisdictional error.
However, Mr Eden’s Immigration Lawyer Nilesh Nandan said the Minister’s decision (now upheld by the Federal Court) reveals inconsistencies in visa cancellation rulings. “Mr Eden received a 12 month suspended sentence, suspended for 2 years,” he said.
Meanwhile, there are others with lengthier sentence terms, and who have served jail time (Mr Eden had not) where the Minister has been lenient and allowed the visa cancellation to be revoked.
Mr Eden believes the Minister may be acting arbitrarily in the exercise of his s501 power. “Here’s a Kiwi citizen who has been given a less serious sentence than others who have had their visa’s cancelled, yet he is being treated much more harshly by the Minister, than others,” Mr Nandan said.
Mr Eden successfully appealed the visa cancellation in July 2015, with the Federal Court reviewing the Minister’s decision to cancel Mr Eden’s visa, and exploring whether the Minister’s decision was “unreasonable or plainly unjust” or lacked an “evident and intelligible justification”.
Nilesh Nandan of MyVisa Lawyers says: “Now, the Full Federal Court has found that the single judge made a mistake by imposing his own views in the original finding,”
Mr Eden voluntarily returned to New Zealand at the time of the handing down of last week’s Full Federal Court decision. Mr Eden said “I can’t take the psychological strain of being placed in detention again and again”.
Mr Nandan is seeking instructions as to whether any Special Leave Application will be made to the High Court for Mr Eden.