Australian Immigration Daily News

It can be really really hard to challenge a decision of the Minister to cancel a visa on character grounds, and to protect a client from getting “booted out” of Australia. 

As we have seen through the cases discussed on this blog over the course of the last several months, even people who have lived in Australia since early childhood, but for whatever reason, have not become Australian citizens, have lost their cases.  These people are facing “removal” – a euphemism for “deportation” back to countries where they may have never lived, and with which they may have no connection in terms of family ties or work history. See for example Brown v Minister for Immigration and Border Protection [2015] FCAFC 141 (24 September 2015)

That is the bitter reality, and the bitter consequence, of the visa cancellation powers that have been introduced into the Migration Act. 

We have even seen a case where a person who was living in Australia on a protection visa had that visa cancelled on character grounds after he was convicted of committing an offence of a sexual nature against a child: Gbojueh v Minister for Immigration and Border Protection [2015] FCAFC 43 (24 March 2015)

The decisions coming out of the Federal courts reflect that the grounds for contesting a visa cancellation on character grounds are quite narrow.  The cases have held that while it is “mandatory” for the Minister to consider the “risk of harm” to the Australian community when determining whether to cancel a visa (Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 (22 April 2015)), it is, at the same time, not mandatory that the Minister consider the “specific factors personal to the visa holder”  - such as the nature of the visa holder’s involvement in the criminal offence leading to the visa cancellation – when considering the “risk of harm” Minister for Immigration & Multicultural & Indigenous Affairsv Huynh [2004] FCAFC 47 (8 March 2004)

It has also been held that when considering the “risk of harm”, the Minister is not required, in all circumstances, to consider the likelihood that the visa holder will re-offend. 

Just about the only times that a visa cancellation has been overturned, or “quashed” have been when the courts have considered that the cancellation was “unreasonable”, in the sense (perhaps) of being “disproportionate”.  In these cases, the court has described the Minister’s action as comparable to taking a “sledgehammer to crack a nut”.   However, the cases where such a finding has been made have been few and far between.  Both decisions where such a finding was made have been issued by the same judge, Judge Logan. See: Stretton v Minister for Immigration and Border Protection (No 2) [2015] FCA 559 (5 June 2015) and Eden v Minister for Immigration and Border Protection [2015] FCA 780 (24 July 2015)  

Given how much of an uphill battle it seems to be to fight a visa cancellation on character grounds, is it any wonder that visa holders will try every available argument? 

One case in which a novel theory was tested was decided by the Full Court just a few months ago, in June 2015.  The case was Ayoub v Minister for Immigration and Border Protection (2015) FCAFC 83. In Ayoub, it was submitted on behalf of the visa holder that it is mandatory, as a precondition for exercising the visa cancellation power, that the Minister consider Australia’s “non-refoulement obligations”.  

The circumstances in the Ayoub  case were that the visa holder was a citizen of Lebanon. He claimed that because there is “constant war” in Lebanon, he would be in danger if he were to be returned there, and that he “feared for the safety” of his wife and children.  However, the visa holder had not claimed to be a refugee, nor had he applied for a protection visa.  Moreover, he did not assert that his life or freedom would be threatened on account of his race, religion, nationality, or by virtue of his membership in a particular social group or his holding a particular political opinion. 

Looking at the case from the outside, it appears that the visa holder’s case had very small chance of success. Indeed, in the event, the case did fail both before the Federal Court, where judicial review was sought in the first instance, and before the Full Court. 

As discussed in the Full Court’s judgment, Australia has “non-refoulement” obligations under the Convention Relating to the Status of Refugees.  Article 33 of that Convention provides that no state that is a party to the convention may “expel or return (refouler) a refugee to a place where the person’s life or freedom would be placed at threat due to factors such as race, nationality, membership of a particular social group or political opinion. 

However, Article 33 of the Convention also states that the benefit of this “anti-refoulement provision cannot be claimed by a refugee who has been convicted of a “particularly serious crime” and “constitutes a danger to the community”. 

Consequently, the first requirement for a person to be able to rely on the anti-refoulement provisions is that the person must be a refugee.  Someone who is simply an “ordinary visa holder” and who is not a refugee cannot rely on the non-refoulement provisions.  Since the visa holder in Ayoub was not a refugee and did not claim to be a refugee,  he did not have any realistic prospect of avoiding visa cancellation on the basis of the non-refoulement provisions. 

Furthermore, even where a refugee is concerned, the non-refoulement provisions do not apply under the Convention  in cases where the person has been convicted of a serious criminal offence and is a danger to the community. 

It seems quite clear that Australia’s non-refoulement obligations will not operate to prevent the minister from exercising the visa cancellation power. 

In the event, the Full Court determined in the Ayoub case whether it is “mandatory” for the Minister to take Australia’s non-refoulement obligations into account, because the Minister had actually expressly discussed them in his written reasons for cancelling the visa.  The Minister concluded, in Ayoub, that cancellation of the visa was not inconsistent with anti-refoulement obligations because Australia would “not necessarily” remove the visa holder to a country in respect of which there was a non-refoulement obligation. 

Ultimately, then, the Full Court left the question of whether non-refoulement provisions must be considered by the Minister “for another day”.  Since the Minister had in fact considered these obligations, the Full Court stated that it was “unnecessary to express any concluded view” concerning whether it is “mandatory” for the Minister to take this factor into account. 

It is safe to say, though, that if the visa holder is not a refugee, or, even if a refugee, the person has committed a serious criminal offence that would cause her/him to fail the character test, it is highly unlikely that the non-refoulement provisions will be a basis for preventing the exercise of the visa cancellation power.

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837