Australian Immigration Daily News

Do you ever feel when you are dealing with the Department that you and your client are trapped in a “Catch-22” situation? 

That whatever path you take will somehow be said to be “wrong”?  That you’re presented with a range of 2 choices, and that both of them are adverse to your client, in different ways? That no matter what,

“the Department always wins, and your client loses”? That without having any desire to do so, you have just stepped through the looking glass, and you have joined “Alice in Wonderland”? 

Well, if you have ever felt that way, like they say back home in Brooklyn, New York, “Have I got a case for you!!!” 

Yes, a decision that was handed down last week by Judge Robertson of the Federal Court, Goundar v Minister for Immigration and Border Protection (2016) FCA 1203 (12 October 2016) does exemplify the Catch-22 nature of some of the decision-making processes by the Department. 

The good news about this case: it does illustrate one possible approach to contesting a visa cancellation (or more exactly, here, a refusal by the Department to revoke a decision to cancel a visa) (isn’t there a bit of Catch-22 in that whole concept, refusing to revoke when really the underlying issue is the cancellation itself? Whatever!) 

OK, here’s the aspect of this case that exemplified “Catch-22”: 

The visa holder, a citizen of Fiji, was convicted of manslaughter and was serving a prison sentence for this offence.  He held a “Spouse” (read: Partner) visa that was cancelled.  Pursuant to section 501(3A) of the Act, he was invited to make representations concerning the reasons why the cancellation of his visa should be revoked. 

In his representations, the visa holder stated as a reason that there would be a risk to his safety if he were to be required to return to Fiji, arising from possible “retribution from members of the victim’s family” as well as from “his former wife’s family”  (the Federal Court’s decision does not explain why the family of the visa holder’s former wife might wish to harm him). 

In reaching the decision to refuse to revoke the cancellation, the Minister determined that it was not necessary to deal with the claims that the visa holder’s safety might be at risk, because it was open to him to apply for a Protection visa. 

The problem with this approach, in the view of Judge Robertson, was essentially that the Minister had incorrectly determined that the concerns raised by the visa holder about the risk to his safety from possible retribution by members of the victim’s family could be adequately addressed through the grant of a Protection visa to the visa holder.  

The difficulty, in other words, was that the visa holder could not satisfy the criteria for the grant of a Protection visa.  As the Court noted, the harm (risk of retribution) was not a “Convention-related” harm  “because it had a private quality” (and I might add, was not premised on a claim that the visa holder had a well-grounded fear of persecution on the basis of race, religion, nationality. membership of a particular social group or political opinion.  

Nor did the visa holder’s claim that he could be subject to retribution provide him with grounds for “complementary protection”. The feared harm was not claimed to be “significant harm” within the meaning of section 36(2A) of the Migration Act.  The claimed harm did not encompass  the visa holder’s being at risk of being arbitrarily deprived of his life, having the death penalty carried out on him, being subject to torture, etc. 

In other words, what happened here is that the visa holder had made representations to the Minister that if the cancellation of his visa were to be revoked, he would possibly be subject to a form of harm that would not qualify him for a Protection visa, and the Minister then determined that he did not need to consider this possible harm (risk to safety consequent upon possible retribution) because it was open to him to apply for a Protection visa. 

Put another way, the Minister decided that the risk of retribution was not a reason to revoke the cancellation of the visa, because the visa holder could address that risk by applying for a Protection visa – even though it was apparent that the visa holder could not possibly qualify for the grant of a Protection visa.    

In the circumstances of this case, the theoretical possibility that the visa holder could apply for a Protection visa was utterly meaningless, because as a practical matter he could not satisfy the criteria for the grant of a Protection visa!! 

So, the Court concluded that there was “jurisdictional error” on the part of the Minister, and it therefore quashed the Minister’s decision to refuse to revoke the cancellation of the visa. 

The error, again, was that the Minister proceeded on the incorrect assumption that it was not necessary to consider the visa holder’s claims that his safety would be at risk if he were to be returned to Fiji because those concerns could be fully addressed through the availability of a Protection visa.  That assumption was legally incorrect, because there was no way that the visa holder could satisfy the criteria for a Protection visa. 

What the Court was saying here was that the Minister should have considered whether the risk to the visa holder’s safety due to possible retribution from the victim’s family was a reason to revoke the cancellation of the visa.  By failing to consider this matter, the Minister had committed jurisdictional error. 

And so this decision ends by showing us one of the key ways to challenge a decision to cancel, or a decision to refuse to revoke the cancellation, of a visa: and that is by showing that the decision maker failed to consider a matter which the decision maker was in fact obligated to consider. 

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.