Australian Immigration Daily News

The legal framework of the Migration Act surrounding the cancellation of the visas of persons who are owed protection obligations by Australia and who therefore cannot be returned to their countries of origin consistently with Australia’s international treaty obligations under the Refugees Convention  is a complicated, convoluted, messed up mess!

That this is so was illustrated by a case that was handed down yesterday, 3 May 2017, by Acting Chief Justice North of the Federal Court of Australia in the case of DMH16 v Minister for Immigration and Border Protection (2017) FCA 448.

This was the background of the case:

The applicant is a citizen of Syria who was born in 1991 and who originally came to Australia in 2005 as the holder of a child visa.  In May 2011, he was sentenced to 3 years imprisonment for the offence of “intentionally causing serious injury”.  Consequently, in October 2014, the Minister cancelled the applicant’s visa on character grounds under section 501(2) of the Act.

The applicant then applied for a Protection visa.  Although the Department made a finding that Australia owed non-refoulement obligations to the applicant, the Minister refused to grant the visa on the basis that the applicant did not satisfy the character test due to his having a substantial criminal record.

It is really really interesting to note what happened with the Protection visa application in this case.

It has appeared that one possible avenue by which a person who has had her/his visa cancelled on character grounds but who could not be returned to her/his country of nationality due to Australia’s non-refoulement obligations could avoid indefinite detention would be to seek a Protection visa.  But if it is going to be the Minister’s/Department’s approach to refuse a Protection visa on character grounds, then that “escape hatch”, or pathway for avoiding indefinite detention is simply not going to be available.

Here’s another really interesting and important aspects of this case: Justice North held that the Minister’s decision to refuse the Protection visa application should be “quashed”, or set aside, on the basis that the Minister had proceeded to refuse the visa application on the basis of an incorrect understanding of the legal consequences of the refusal.

In the reasons given for refusing the Protection visa, the Minister made the following statement:

“In making my decision I am aware that while (the applicant) will not be removed from Australia if his visa application is refused (notwithstanding s 197C of the Act) he may face the prospect of indefinite detention because of the operation of s 189 and s 196 of the Migration Act”.

Justice North found that this statement in the Minister’s reasons was legally incorrect.

The actual legal effect of the refusal of the Protection visa application was to make the applicant subject to immediate removal back to Syria notwithstanding that he had been found to be owed non-refoulement obligations.

Rather, the effect of section 197C in this case was to require the removal of the applicant back to Syria notwithstanding that he is owed non-refoulement obligations.

That is because section 197C contemplates that a person may be removed from Australia despite the fact that the person is owed non-refoulement obligations!

That is right. Section 197C by its terms provides that for the purposes of section 198 (the provision of the Migration Act that provides for the removal of unlawful non-citizens from Australia) “it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen”.  (In fact, 197C(2) goes so far as to say that an officer’s duty to remove an unlawful non-citizen under s 198 “arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the  non-citizen”.

One really has to wonder and question what in the world section 197C is even doing in the Migration Act, and whether it is really a lawful provision.  It surely seems that section 197C amounts to a repudiation of Australia’s international treaty obligations not to refoule. And it therefore surely seems to be inconsistent with Australia’s international human rights obligations!

In any event, in the case presently under discussion Justice North held that the misunderstanding by the Minister of the legal consequences of the refusal of the Protection visa amounted to jurisdictional error, requiring that the decision to refuse the application be quashed.  As Justice North observed, if the Minister had properly understood that the legal consequence of the refusal of the Protection visa application was not that the applicant would be subject to the prospect of indefinite detention, but rather that he would be subject to removal back to Syria in breach of Australia’s non-refoulement obligations.

There is an underlying moral and concept from this decision that has general applicability to other cases as well, namely that where the Minister does misunderstand or misconceive the legal consequences of a decision (especially to refuse a Protection visa) then that decision is vulnerable to challenge in the courts.

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