When the High Court delivers a judgment, most parties take time to consider it carefully. Not Immigration Minister Peter Dutton. Within an hour of the court handing down a decision today overturning Dutton’s use of secret information to cancel the visa of Tasmanian based former New Zealander AJ Graham, Dutton cancelled Graham’s visa again. No doubt Graham’s lawyers will head back to court to stop Dutton’s latest blow from landing on their client.
AJ Graham emigrated from New Zealand in 1976. He has a criminal record in Tasmania, including serving a stretch of jail time for a serious assault a decade ago. He was said to have connections with the Rebels motorcycle gang. In 2015, six years after he was last in jail, Graham was swept off the streets of Hobart and placed in the supermax facility of New South Wales’ Goulburn prison overnight — away from his family and particularly his partner, for whom he was full-time carer. Last year the Federal Court overturned Dutton’s decision to revoke Graham’s visa and force him to return to New Zealand. But within hours of that win Dutton found a new basis on which to cancel the visa, meaning Graham continued to languish behind bars. That decision was the subject of this High Court challenge.
The High Court decision today dealt with Dutton’s use of a provision in the Migration Act section 503A (2) (c) — introduced by the Howard government in 1998 — which allows a minister to revoke a person’s visa using secret information that is not disclosed to the person affected or the courts. Dutton used such a secret dossier of information on Graham as a primary reason for revoking Graham’s visa.
The High Court, with one judge, James Edelman, dissenting, found that the secret information provision was invalid to the extent that it prevented the courts from obtaining access to that information when it was relevant to the minister for immigration’s decision. As the summary of the judgment published by the court notes, Dutton has misunderstood his power in thinking that he was prevented “from in any circumstances being required to divulge or communicate certain information including to a court engaged in judicial review of the impugned decisions”.
In summary, the High Court’s decision places at least some check on the use of secret information to revoke a person’s visa and force them to leave Australia.
But Dutton and his department were not going to take the time to consider the High Court’s lengthy and complex judgment. Within an hour of the decision the minister had revoked Graham’s visa yet again. The swiftness of his actions is eerily reminiscent of the recent case decided in July in which Dutton reacted to a court decision on the afternoon of December 14 last year to overturn his revocation of visas of two men by, later that evening, taking less than an hour to revoke again, despite the fact that there was more than 600 pages of material in each man’s file.
I am not aware of any minister or government in Australia’s history moving so swiftly to react to an adverse decision of the High Court. This is Australia’s highest court. Its judgments need to be read carefully and the implications of its decisions thought through carefully before responding. Dutton’s actions today — like his actions last December — have the feel and look of an authoritarian who has contempt for the independence of the court system and who is obsessed with getting his own way.
*Disclosure: Greg Barns has acted for A J Graham in the past in Tasmania but was not acting in this matter