The Federal Court has questioned the actions of the Assistant Immigration Minister Michaelia Cash in a recent deportation case stating they were “oppressive and unreasonable”.
Appearing before the Federal Court last Friday, Mas Eden was fighting for his right to stay in Australia with his wife and child, after being arrested and spending 85 days in detention as he awaited deportation to New Zealand.
The Assistant Immigration Minister personally cancelled Mr Eden’s visa under section 501 of the Migration Act.
Justice Logan said the Assistant Immigration Minister based her decision on Mr Eden’s criminal conviction in 2011 (which resulted in a suspended sentence) without taking into account a range of other relevant factors.
Justice Logan said “…The Minister has, with respect, taken a sledgehammer to crack a nut.”
On April 30, Mr Eden’s house was surrounded by federal agents. He was arrested and taken to Brisbane, then to Pinkenba Immigration Detention and then onto Brisbane Airport where he was flown to Perth, all on the same day.”
“Some might, perhaps, regard the adjective heinous as also applicable, albeit for different reasons, to this type of behaviour on behalf of one of the Queen’s Ministers of State,” Justice Logan said in his decision.
The Federal Court ordered Mr Eden’s immediate release after Justice Logan found the Minister’s actions were unreasonable.
Nilesh Nandan, Mr Eden’s Immigration Lawyer and Practice Director at MyVisa® Immigration Law Advisory said “This case is about power. It shows what happens when extraordinary discretionary power is unleashed”.
“The court has quashed the decision to cancel Mr Eden’s visa, making it clear that any exercise of a discretionary power by a Minister of State must be reasonable. If not, it will be affected with jurisdictional error and will be struck down by the courts.”
Mr Nandan said Mr Eden was told a lawyer couldn’t help him because his visa cancellation was signed by the Minister personally.
“The decision to cancel Mr Eden’s visa and the use of quasi-military force in these circumstances was simply unreasonable and un-Australian,” he said.
“Will the Minister appeal? Important judgments like this are invariably appealed by the Minister.
“Will the decision be overturned on Appeal? This judgment applies established legal doctrines recently discussed in High Court cases. It might be easier to pass new laws than challenge the decision in this case successfully.”
- Mas Eden is a citizen of New Zealand
- Came to New Zealand in 1998 as a refugee from Iran
- Has lived in Australia for eight years
- Married for 5 ½ years to Rachel and has a five year old son
- He is their sole means of support
- Run his own transport contract business
- May 2011 was convicted of sexual assault in District Court – pleaded guilty
- In sentencing, Judge Koppenol found “actions can often be misinterpreted and I think this is probably a case like that”.
- Sentenced to 12 months, suspended with two years good behaviour
Annette DenshamP: 0478718041