News: US anti-abortion activist fails in High Court bid to fight deportation

US anti-abortion activist Troy Newman has failed in his last minute High Court bid to challenge the revocation of his Australian visa. His visa was revoked days before he was due to tour Australia. Newman has espoused controversial views regarding abortion, suggesting in a co-authored book that persons who seek abortions and doctors who perform them should be executed for murder. Minister for Immigration Peter Dutton cancelled his visa pursuant to s 128 of the Migration Act 1958 (Cth). Section 128 allows the Minister to cancel a visa before the non-citizen holder enters Australia on the basis of the considerations set out in s 116. The relevant consideration in this case was s 116(e)(i): namely, that the presence of the visa holder in Australia might pose a risk to the health, safety or good order of the Australian community or a segment of the Australian community.

Once the visa was cancelled, Newman was prevented from boarding his plane in Denver, but he nonetheless flew to Australia without a valid visa by using a different airline carrier. Upon reaching Australia, Newman was detained, and faced immediate deportation. However, he successfully sought a stay of deportation while his legal challenge to the visa cancellation and deportation was resolved.

The ABC reports that Nettle J decided that the Department was justified in revoking Newman’s visa over fears the visit would pose a risk to the community. Although Newman may have had a case to challenge the refusal, Nettle J said he should not have boarded a plane to Australia knowing his visa had been cancelled, as this meant he did not “come to the court with clean hands”.

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About Katy Barnett

Katy Barnett is a Professor at Melbourne Law School. She has published extensively in the areas of private law and remedies, and is a co-author of ‘Remedies in Australian Private Law’ with Dr Sirko Harder. In 2016 she received the Barbara Falk Award for excellence in teaching.

3 thoughts on “News: US anti-abortion activist fails in High Court bid to fight deportation

  1. The transcript, including Nettle J’s reasons, is (at last) online: It reveals five interesting things that (I think) haven’t been reported in the media:

    – “[T]he allegation that the plaintiff had called for abortionists to be executed appears to be false.” Nettle J cites a letter from the applicant’s co-author, stating that the book expressly disclaims non-judicial actions or violence as a response to abortion.
    – The Minister did not rely on that allegation, although he cites a quote from the book describing abortion as ‘a most savage act of violence’. The reason for cancelling the applicant’s visa was a fear of violent protests against him. Nettle J notes that there is not any evidence of such protests against him in the US.
    – Nettle J found: “If that were the basis for the decision, the judgments of at least three members of this Court in Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4, may be thought to suggest that the Minister’s construction or application of section 116(1)(e) of the Act is at odds with the implied freedom of political communication and, therefore, that the cancellation decision is invalid. Consequently, I am persuaded that there is a serious question to be tried.”
    – Newman-Mariotti seemingly harmed his case by initially disclaiming useful knowledge of the visa cancellation. And yet, he posted a video on facebook while in the US stating: “RED ALERT!!! The Australian government has revoked my visa in mid-flight . . ”
    – He apparently intends to continue the case in the High Court, issuing 78B notices, with a directions hearing on 30th October. The Commonwealth said it would seek to have the matter remitted to the Federal Court.

  2. It is odd that Nettle J appears to have taken the letter from the book’s co-author Sullenger and said an allegation based on the plain reading of words in the book “appears to be false”. That’s a very strong statement to make at an interlocutory stage based on very little evidence – and embarassing given that Ms Sullenger’s criminal history (which rather gives the lie to the idea she forswears violence against abortion doctors) is a matter of public record. I expect the minister’s representatives will be very quick on the draw at the hearing on that point.

  3. Thanks Jeremy – I searched assiduously for that on the day. Arky – wow, if Wikipedia is to be believed (and I see no reason why it is not), Ms Sullenger has pleaded guilty to conspiring to blow up an abortion clinic in 1988 (for which she spent three years in gaol). Among other things, she’s also admitted that she provided the scheduled court dates of doctor George Tiller to the man who subsequently assassinated him in 2009. Yes. It does rather give lie to her assertion that “we [she and Newman] reject violence as a solution to abortion or any other problem.”

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