Australian Immigration Daily News

As my colleague Jerry Gomez has pointed out in his post in the Migration Alliance blog on 12 January 2016, there were a record 580 visa cancellations on character grounds in FY 2014 - 2015. 

The table that Jerry has included with his post reflects that some of the countries where the visa holders originally came from are places where there has been a history of war or civil or political conflict.  These countries include: Sudan, Iraq, Afghanistan, Sierra Leone, Lebanon, Fiji and Vietnam. 

So, it is natural to wonder, when one looks at that table, how many of the people who had their visas cancelled on character grounds may have originally entered Australia as “refugees”.  

And further, one might wonder, if the visa holder did originally come to Australia as a refugee, does the Minister have an obligation to take into account Australia’s “non-refoulement” obligations (obligations not to return the person to a country where her/his life or freedom would be threatened on account of factors such as race, religion, nationality, membership of a particular social group or political opinion) under the Refugees Convention when the Minister considers whether to exercise (his) personal powers to cancel a visa under the Migration Act? 

Furthermore, what if the Department/Minister has already considered whether returning the visa holder to her/his country of origin would engage Australia’s anti-refoulement obligations when cancellation of the visa was previously considered, and it was found that cancellation would not breach the anti-refoulement provisions of the Convention – in that circumstance, does the Minister/Department have an obligation to consider another time whether cancellation would be contrary to the anti-refoulement provisions? 

These questions certainly seem legally complicated, and perhaps even “headache-inducing” at this time of year, as we in the migration advice profession straggle back to work from our summer holidays – don’t they? 

But they are real, serious questions that are likely to present themselves in the future. 

Fortunately, there is guidance on these questions from a decision that was handed down by Judge Logan of the Federal Court on Christmas Eve last year: Le v Minister  for Immigration and Border Protection, (2015) FCA 1473 (24 December 2015). 

On the surface of this case, it might appear that the Minister’s decision to cancel the visa was relatively non-controversial and might perhaps even be described as something of a “no-brainer”.  This is because the visa holder had what could be considered by any standard to be a “substantial criminal record”.  In fact, in the Federal Court proceedings in which she challenged the cancellation of her visa, the visa holder (Ms Le) did not even claim that she passed the “character test”. 

The background was that Ms Le had been born in Vietnam in 1956. She arrived in Australia as a refugee in 1984. Over the time that she lived in Australia, she compiled a criminal record involving a series of convictions for dealing heroin. These included: 1) an original conviction in 1997 for supplying and possessing heroin which resulted in a prison sentence of 4 years; 2) a second conviction in 2000 for trafficking in “significant quantities of dangerous drugs” which resulted in a second prison sentence of 8 years; and 3) a third offence, in 2007, again for trafficking in dangerous drugs, which resulted in another prison sentence of 8 years. 

It was this third conviction which prompted the visa cancellation action by the Minister that was the subject of the Federal Court proceedings before Judge Logan. 

The Minister made findings that the “countervailing considerations” against visa cancellation – including Ms Le’s longstanding residence in Australia, the impact of cancellation of her visa on her husband and the best interests of her 8 grandchildren in having her remain in Australia – did not outweigh her significant criminal record. 

And Judge Logan found that the Minister’s decision to cancel the visa based on Ms Le’s criminal record was not “unreasonable” (and thus not affected by jurisdictional error on that basis) on the grounds that it was “disproportionate”, or a decision which “no reasonable decision-maker would make”. 

Rather, Judge Logan found that the legal error that had been made by the Minister was in concluding that he did not have to consider Australia’s non-refoulement obligations because Ms Le had made no claims concerning these obligations in the submissions she had made concerning the Minister’s proposed cancellation of her visa. 

Judge Logan held that Ms Le was not required to raise the question of Australia’s non-refoulement obligations in her submissions to the Minister. Because she had previously acquired the status of a refugee, the Minister was legally obligated to consider whether the visa cancellation would be contrary to the anti-refoulement provisions of the Refugees Convention.  In order to reach a conclusion on that question, the Minister would have had, at least, to have conducted an analysis to determine whether Ms Le still retained “refugee status” (it was possible that she could have lost her refugee status by committing a “particularly serious crime”. 

Implicit in Judge Logan’s decision is that the Minister was under an obligation to take Australia’s anti-refoulement obligations into account even though these obligations had previously been considered in connection with prior visa cancellation decisions. 

So, what is the ultimate “lesson” of this case? It is that the Refugees Convention, and, in particular,Australia’s international non-refoulement obligations under the Convention must be accorded great weight in any visa cancellation decision.  If a person has originally entered Australia as a refugee, it is mandatory for the Minister or the Department to consider non-refoulement issues before cancelling a visa on character grounds. If this mandatory consideration is not take into account, the visa cancellation decision will be infected by jurisdictional error and will be subject to being quashed, or overturned.  

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