Peter Dutton’s Decision Quashed by the Federal Court
Irish Bentley Lawyers, acting on behalf of Mr Lyons, was pleased to obtain a favourable decision in Lyons -v- Minister for Immigration and Border Protection  FCA 1381.
On Friday, 24 November 2017, the Federal Court quashed Peter Dutton’s decision to cancel Mr Lyon’s Australian permanent residency, and Ordered that Mr Lyons be released immediately from detention. Mr Lyons spent some three months in detention awaiting the decision.
“I am just relieved for Derek and his entire family that the Court has exercised its power to release this family man and to reverse this abuse of government power.”
– Zeke Bentley, Irish Bentley Lawyers
The decision concerns the controversial s. 501 character provisions which the Dutton has relied upon to cancel literally thousands of visas.
Zeke Bentley observed:
“This has led to thousands of people being forcibly deported from our shores – a process that has broken families and hearts all over the country.”
“Many of those deported have lived here for decades and many of the deportations concern relatively trivial (and historical) offences – for example Derek was born in Scotland in 1965 and migrated to Australia when he was four (4) years old, he has been happily married to his Australian wife for 23 years, and he has raised three (3) Australian children, and currently cares for his grandson, his terminally ill sister and mother…yet our government sought to separate him from his family and to deport him from the country he has lived in since he was 4 years old, over one offence committed in 2006.”
Before Dutton decided to cancel his visa and place him in detention, Derek embraced his role as a grandfather enjoyed caring for his eighteen month old grandson so his daughter could work. Derek also cares for his terminally ill parents; he has a large extended family unit comprising Australian citizens, and raises money for PCYC and disabled children funds. He has been, and remains, a valuable member of the Australian community, as attested to by the many local residents in his community that sent letters of support into Peter Dutton – letters which fell on deaf ears.
The Minister seemingly relied upon a single conviction of “entering a premise with the intention of committing extortion” which related to Mr Lyon’s attendance at a tattoo parlour in 2006 where two other Black Uhlan’s had sought to have a conversation with the tattoo parlour owner. That event occurred almost 10 years before Dutton decided to cancel his visa, Derek has no other criminal history whatsoever, he was only present (he was not the primary offender), and there was no violence or threats of violence. It was also way back in 2006 so Dutton was effectively imposing a second punishment on top of what the Judge felt appropriate at the time – a draconian family splitting punishment which caused actual harm to Derek’s family members in 2017.
Despite submissions from Irish Bentley Lawyers (which Her Honour Justice Collier FCJ observed that “the Minister appeared to distort… by omission of key words”) the Minister maintained that he would not use his discretion to allow Mr Lyons to remain in Australia with his family.
Irish Bentley Lawyers successfully argued that the Minister’s decision to cancel Mr Lyon’s visa was infected with legal error as there was no evident, transparent or intelligible justification for the Minister to cancel Mr Lyon’s visa. Indeed, the Federal Court noted that the Minister had “cherry-picked” circumstances which purported to justify cancelling Mr Lyon’s visa and that a number of the Minister’s bases for cancellation were “purely speculative, verging on fanciful”.
The Judge concluded that the Minister must make a balanced and objective appraisal when exercising the significant and substantive power under s. 501(2) of the Migration Act and “the statement of reasons of the Minister in this case demonstrates that the Minister has not performed this task.”
Whilst the Minister’s decision was successfully defeated, it caused:
- Mr Lyon’s being unnecessarily forcibly detained under a search warrant executed at his house, in front of his family, at 5:00am in the morning, leaving them traumatised about what was happening to their grandfather;
- Mr Lyons to spend months spent unnecessarily apart from his family in immigration detention in jail like conditions with no right to bail
- significant distress and unnecessary angst to an Australian family (including his children and grandson)
- actual harm to his ill relatives whose terminal medical conditions were exacerbated by Mr Lyon’s detention.
Mr Zeke Bentley stated that:
“The laws Dutton relied upon, came into effect in 2013 – half a decade after he was sentenced – so Dutton wanted to impose an extra punishment (on top of what the Judge deemed appropriate at the time) of deportation (from the country he lived in for over since 1969 (when he was 4 years old).
He was effectively put in jail, without any possibility of bail (immigration detention does not allow bail), until we were able to seek the Court’s help. He had less rights than any charged for a crime…yet he had done nothing since 2006, and nothing before then.
Derek’s first concern at all times was his family (not himself) and this was consistently his reason for fighting it…because if he accepted deportation, he may never see them again, and he felt their health would suffer if he could not return to his carer’s role.
Also, one of Derek’s primary concerns was that he would be free to reduce the stress on his ill mother and sister, and free to see them if things took a turn for the worse….one really has to question why Mr Dutton gave such scant regard for Derek’s terminally ill family at their greatest time of need.”
Mr Zeke Bentley further stated that:
“We also have legislation that assists the rehabilitation of criminals and forgives criminal records – the Minister should respect and give effect to that legislation and the international agreements Australia has reached such as those set out in the Hague convention (which states that family units ought be protected, not destroyed).
I genuinely also feel sorry for the large number of people with similar circumstances (well over 1000 people have been forcibly removed under these laws in the last year – most of those deportees were NZ citizens who have lived here for years and decades) who cannot afford to seek the Court’s help.
I have spoken with (and advised) many men who have lived in Australia for over a decade, who have raised children here, who have been forced by Dutton’s ministry to leave the country (and their children/families behind), as a result of similar unfair decisions, purely because they didn’t have the funds to seek the Court’s help or the willingness to endure spending weeks/months in detention whilst they waited for a Judge to (hopefully) help.
I hope this decision gives people in similar situations the courage and confidence to seek the Court’s help, rather than let their family and themselves be bullied into leaving the country that their family (and they) called home.
The decision really highlights the importance of our Courts in keeping the government fair and accountable, and the need to fight injustice before all of our civil rights are taken away”.
– Zeke Bentley, Irish Bentley Lawyers
The team at Irish Bentley Lawyers are pleased to have been able to reunite Mr Lyon’s with his Australian family and ensure that the Minister’s significant powers remain checked and balanced.
If you have a migration issue, then please do not hesitate to contact the team at Irish Bentley Lawyers – there is no substitute for proper legal advice based on your individual and unique circumstances.