Australian Immigration Daily News

Suppose a person has had their visa cancelled on character grounds.

Suppose further that the person is owed protection obligations under the Refugees Convention, and therefore cannot be returned to his home country, or removed to a third country?

Is the person doomed to a period of indefinite detention?

Is the answer to this situation for the person to apply for a Protection visa?

These issues were all presented in a case that was recently decided by Judge Barker of the Federal Court of Australia, AIN17 v Minister for Immigration and Border Protection (2017) FCA 907.

And they were also presented in a case that I personally handled earlier this year.

The outcome in my client’s case was ultimately different than the outcome in AIN17 – I was able to get my client released immediately from immigration detention.

So if you stick with me, and keep reading, I will explain the strategy and legal theory, and how it can work.

The background of AIN17 was that the visa holder was a citizen of Afghanistan who had resided in Australia under a permanent resident visa (the exact type of visa is not recorded in the Federal Court’s decision). He is the father of 3 children, aged 10, 7 and 1 year old, and the stepfather of a 14 year old.

He is also a person of Hazara ethnicity, and claimed that if he were to be returned to Afghanistan, he would face a substantial risk of torture.

However, the visa holder committed serious criminal offences while in Australia, which led to his conviction and imprisonment (for a period of 16 months) on two counts of “unlawful wounding”.

Therefore, his visa was subject to mandatory cancellation under section 501(3A) of the Migration Act.

The Assistant Minister decided not to revoke the cancellation of the visa, on the basis that the visa holder represented an unacceptable risk of harm to the Australian community, and that the interest in the protection of the Australian community outweighed the competing factors in the case that weighed in favour of revocation of the cancellation, such as the best interests of the visa holder’s children, his lengthy period of residence and employment in Australia, and even the non-refoulement obligations which he was owed by Australia.

Judge Barker took note of the High Court’s decision in the Al-Kateb case, where the Court held (by narrow 4 – 3 majority!) that the Migration Act authorizes the indefinite detention of an unlawful non-citizen, even in circumstances where the removal of the person from Australia is not reasonably practicable in the foreseeable future.

In Judge Barker’s view then, the fact that cancellation of the visa would have the consequence of the indefinite detention of the visa holder was not a valid reason for overturning the Assistant Minister’s decision not to revoke the cancellation of the visa.

Judge Barker considered that the visa cancellation  could be quashed only if the Assistant Minister had omitted jurisdictional error by failing to take into account the legal consequences of the cancellation.

And Judge Barker concluded that the Assistant Minister had considered the legal consequences, which were characterised as encompassing the prospect that the visa holder would face indefinite detention.

So Judge Barker found that since the Assistant Minister had considered this consequence, the Assistant Minister had not committed jurisdictional error. And so Judge Barker dismissed the visa holder’s application for judicial review of the decision not to revoke the visa cancellation.

I might also observe at this point that it is my opinion that persons who have had their visas cancelled on character grounds are unlikely to be able to obtain Protection visas.  That is because one of the criteria that must be satisfied for the grant of a Protection visa, clause 866.226 of Schedule 2, provides that the Minister must be satisfied that the grant of the Protection visa is in the national interest.  It is my view that once the Department/Minister has cancelled a visa on character grounds, the chances are quite remote that a finding will be made that it is in the national interest to grant the person a Protection visa.

So, is there an answer here?

I believe that there is!

As I have discussed in an earlier article on this blog, a case that was decided in May of this year, DMH16 v Minister for Immigration and Border Protection¸  held that it is not correct to characterize the legal consequence of the refusal of a Protection visa as being that the applicant, otherwise an unlawful non-citizen to whom non-refoulement obligations were owed, would face the prospect of indefinite detention.

Rather, in DMH16, Judge North of the Federal Court held that the correct characterisation of the legal consequence of the refusal of a Protection visa to a person who  is owed protection obligations is not actually the prospect of indefinite detention,  but rather, under section 197C, removal from Australia.

In the case that I handled, I was able to rely on DMH16 to establish that the same principle should apply in a circumstance where the Minister purports to cancel the visa of a person to whom protection obligations are owed on character grounds: the legal consequence of such a decision is not the prospect of indefinite detention, but rather it is the immediate removal of the person to their home country.

I would therefore respectfully suggest that the decisions of Judge North in DMH16 and of Judge Barker in this recent case of AIN17 are in conflict, and that, applying Judge North’s holding in DMH16, the Assistant Minister did not in fact accurately characterize the legal consequences of the visa cancellation, and that the Assistant Minister therefore thus did fall into jurisdictional error.

I would also suggest to readers that the decision in DMH16 can be an incredibly useful tool to secure the release from immigration detention of persons who have had their visas cancelled on character grounds and who cannot be removed to their home countries in the reasonably foreseeable future by reason of the fact that they are owed non-refoulement obligations under the Refugees Convention.

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