High Court ruling on visa cancellation for people without legal capacity

In BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs, the court found that the Department of Home Affairs did not give valid notice of visa cancellation to our client, as he did not have capacity to understand or respond to the notice issued to him while in prison.

This sets an important precedent for the rights of non-citizens in prison or detention who are subject to visa cancellation where they do not have capacity to take action in response. It also reinforces the need for early legal and non-legal assistance so people with disability or mental health issues can be supported to exercise their rights.

The court ordered that our client’s previous visa cancellation notice be quashed and reissued to his advocate guardian at the Office of the Public Advocate so they can decide what action to take on his behalf.

About the case

Our client migrated to Australia as a child from Cambodia and has lived here ever since. He has no family or community supports in Cambodia.

He has a history of experiencing homelessness and compulsory treatment for mental health issues. His permanent visa was cancelled when he was in a secure psychiatric unit in prison following a conviction for criminal offences.

This was due to the Australian Government’s policy of mandatory visa cancellation for non-citizens serving a term of imprisonment of 12 months or more.

Our client was given written notice of cancellation, which included 28 days to respond with why his visa should be reinstated. However, he did not take any action due to his capacity issues and difficulties understanding what was happening.

Shortly after his visa was cancelled, a legal guardian at the Office of the Public Advocate was appointed by the Victorian Civil and Administrative Tribunal as a substitute decision maker for our client. Our client instructed us – through his guardian – to begin proceedings in the Federal Circuit and Family Court of Australia to seek renotification of the visa cancellation. This was not successful, nor on appeal to the Full Court of the Federal Court.

We sought and obtained special leave to appeal to the High Court. A bench of five justices heard the case and found unanimously in our client’s favour on 4 December 2024, highlighting ‘the concern of the law to protect those who lack capacity’.

Mandatory visa cancellation

This case demonstrates the harsh impacts of the government’s mandatory visa cancellation policy. We support calls in our sector for the policy’s repeal.

Under this ‘cancel first, talk later’ regime, a person’s visa is automatically cancelled and they have just 28 days to seek for it to be reinstated.

Individuals in prison must rely on the goodwill of prison staff to help them return their paperwork within the short timeframe given. If this does not happen, they miss their limited opportunity for procedural fairness and their visa remains cancelled.

The consequences are severe and permanent. As put in a recent Human Rights Law Centre report, while Australian citizens are granted liberty after serving a sentence, people subject to visa cancellation are ‘pipelined’ from prison to immigration detention and deportation.

‘This policy causes extraordinary systemic barriers for non-citizens in accessing their right to natural justice,’ says Acting Executive Director of Legal Practice, Civil Justice, Access and Equity, Lucy Adams.

‘It is devastating for people in prison without citizenship, especially in circumstances where they lack legal capacity due to disability or mental health issues, as in the case of our client.’

Legal assistance is essential

People with disability, including mental health issues and psychosocial disability, must have access to legal assistance and other non-legal support while in prison.

‘While we welcome the High Court’s decision, which will go some way to ensuring fairer outcomes for people experiencing compounding disadvantage, this must come with changes in the system,’ Lucy Adams said.

There is a need for review of operating standards related to prison placement, programs, education and parole to eliminate the discriminatory treatment of people based on visa status. Non-citizens should be assisted by prison staff to contact legal services. This should be early in their sentence, rather than after a visa cancellation process begins.

We will continue to work with our partners in the sector to achieve meaningful change.

Contact

For any media enquiries, contact Senior Communications Advisor Ala Al-Mahaidi at ala.almahaidi@vla.vic.gov.au or 0447 581 879.