There has been another extremely important decision from the Full Court on the issue of visa cancellation on character grounds.
This decision was handed down by the Full Court yesterday, 13 June 2017, and just appeared on Austlii this morning: BCR16 v Minister for Immigration and Border Protection (2017) FCAFC 96 (13 June 2017).
The case defines a new possible basis for challenging a decision made personally by the Minister or Assistant Minister to refuse to revoke the mandatory cancellation of a visa on character grounds.
The case was decided by a 2 to 1 majority, with Justices Bromberg and Mortimer deciding that the decision of the Assistant Minister to refuse to revoke the cancellation was infected by jurisdictional error, while Justice Davies was not prepared to accept that conclusion.
The background of this case was that the visa holder was a citizen of Lebanon who was present in Australia under the authority of a Subclass 820 – temporary Partner visa. Following the mandatory cancellation of his visa, he was given an invitation to make representations concerning the reasons why the cancellation of his visa should be revoked, and his visa should be reinstated.
In response to this invitation, the visa holder made representations in the following terms:
“Lebanon is currently unsafe for myself and Alawites. If I return I will then be harmed and possibly killed by insurgents and militants who hate Lebanese Alawites. Also Lebanon is not a safe country for me, my wife and daughter it is very dangerous.”
As Justices Bromberg and Mortimer noted in their judgment, the visa holder’s representations did not expressly refer to Australia’s non-refoulement obligations under the Refugees Convention as a reason that the cancellation decision should be revoked. Instead, as described by Justices Bromberg and Mortimer, the “representations focused on his fears of the harm that would face him in a practical and day to day sense if he were forced to return to Lebanon.”
So exactly what was the jurisdictional error that was made in this case by the Assistant Minister?
In the Statement of Reasons in support of the decision not to revoke the mandatory cancellation, the Assistant Minister had recited that since the visa holder was not prevented by section 501E of the Migration Act from making an application for a Protection visa, it was “unnecessary to determine whether non-refoulement obligations” were owed to the visa holder.
The error with this reasoning, as identified by Justices Bromberg and Mortimer, was that it was premised on a misunderstanding or misconception of the scheme for the assessment of Protection visa applications that exists under the Act.
As the legal representatives for the visa holder pointed out in their submissions, the Act does not fix any “order of priority” by which the various criteria for the grant of a Protection visa must be considered.
Therefore, it is entirely possible that an application for a Protection visa may be refused on character grounds before there is any consideration as to whether an applicant is entitled to the grant of a Protection visa either on the basis of refugee status under section 36(2)(a), or on complementary protection grounds under section 36(2)(aa) of the Act. The reason of course if that clause 866.225 makes satisfaction of Public Interest Criterion 4001, which in turn requires that an applicant must satisfy the Minister that she/he passes the character test, a criterion for the grant of a Protection visa.
The jurisdictional error made by the Assistant Minister was that her Statement of Reasons did not refer to, or in the words of Justice Bromberg and Mortimer, did not disclose any consciousness, that an application for a Protection visa by the visa holder could be required to be refused because of non-satisfaction of character criteria, and that considerations relating to the risk of harm that the visa holder might face upon return to her/his home country might never be reached.
So the primary jurisdictional error identified by the Court in this case was that the Assistant Minister proceeded on what may be said to have been an incorrect understanding of the law, namely that any concerns that return of the visa holder to his home country might be contrary to Australia’s non-refoulement obligations could be addressed in the context of a subsequent application for a Protection visa.
As a matter of fact, because an application for a Protection visa can be refused purely on character grounds, it is entirely possible that questions concerning whether an applicant has a well-founded fear of persecution on Convention-related grounds, or whether there is a real risk that the applicant would suffer significant harm on return to her/his home country, and thus be entitled to complementary protection, might never be decided.
So the lesson of this case is that if there is language in the Statement of Reasons by which the Minister decides not to revoke the cancellation of a visa to the effect that the Minister does not consider it necessary to consider whether the applicant is owed non-refoulement obligations because it is open to the visa holder to apply for a Protection visa, then the presence of that language will establish that jurisdictional error has occurred!
It is also important to note that Justices Bromberg and Mortimer identified another, somewhat related, instance of jurisdictional error on the part of the Assistant Minister in this case.
That was that, even though the visa holder did not describe the harm that he feared he might be subject to if he were forced to return to Lebanon by reference to “non-refoulement”, the Assistant Minister had misunderstood his representations as relating to non-refoulement obligations. In other words, the forms of harm to which the visa holder was referring in his representations were types of harm that were at least conceivably outside Australia’s international non-refoulement obligations.
The Assistant Minister’s failure to consider whether these forms of harm, not necessarily related to Australia’s non-refoulement obligations, were a reason for revoking the cancellation of the visa, was thus another form of jurisdictional error.
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