Australian Immigration Daily News

Does the Minister have an obligation to consider whether a visa holder is owed nonrefoulement obligations when deciding whether to cancel a visa?

Or is it “good enough” (sufficient to protect the visa cancellation decision against challenge) for the Minister simply to find that since it is open to the visa holder to apply for a Protection visa, there is no need to determine whether nonrefoulement obligations are owed?

This was the central issue in a case that was recently decided by Justice White of the Federal Court, Ibrahim v Minister for Immigration and Border Protection (No. 2) (2017) FCA 1218 (13 October 2017).

The background of the case was that the visa holder is a citizen of Nigeria who had been granted a Subclass 100 Partner (Migrant) visa in January 2009. That visa was originally cancelled in July 2015 by a delegate of the Minister on the basis that the visa holder did not pass the character test because he had been convicted of the offence of “aggravated robbery” and sentenced to imprisonment for 2 years and 10 months.

The original decision to cancel the visa was revoked by another delegate of the Minister in August 2016.

However, in May 2017, the Assistant Minister set aside the revocation of the cancellation decision under section 501BA(2) of the Migration Act.  This section empowers the Minister to set aside the revocation of a cancellation decision if the visa holder does not pass the character test by reason of having a “substantial criminal record” as defined by section 501(6) and if the Minister determines that the cancellation is in the “national interest”.

In submissions that were made to the Department seeking revocation of the original cancellation decision, it had been brought forward that an International Treaties Obligation Assessment should be carried out because the visa holder is a Christian from the northern part of Nigeria, and that he would potentially be subject to persecution on religious grounds (particularly from the notoriously violent fundamentalist group “Boko Haram”.

The Assistant Minister’s reasons for reinstating the cancellation decision recited that it was “unnecessary to determine whether nonrefoulement obligations” were owed to the visa holder, on the basis that the visa holder was not prevented by section 48A of the Migration Act  from making an application for a Protection visa (and that his claims that he was owed nonrefoulement obligations could be assessed in the context of review of that subsequent Protection visa application).

Justice White of the Federal Court found that the Assistant Minister’s decision had been affected by jurisdictional error, and therefore quashed the cancellation and ordered that the visa holder be released from immigration detention.

The jurisdictional error that occurred in this case was that the Assistant Minister had proceeded to reinstate the cancellation decision on the basis of a mistaken understanding of the legal effect of the Migration Act.

The Assistant Minister had incorrectly assumed that the visa holders nonrefoulement claims would necessarily be considered, as a matter of law, when his Protection visa application was assessed.

However, as was pointed out in the submissions made on behalf of the visa holder, the Migration Act does not require that nonrefoulement claims be considered as part of the determination of a  Protection visa application.  Rather, there is no requirement that the criteria for the grant of a Protection visa be considered in any particular order. Therefore, an application can be refused on a variety of grounds (e.g. failing to satisfy health criteria, or on character grounds) before any consideration of a nonrefoulement claim has taken place.

Justice White concluded, therefore, that because the Assistant Minister had proceeded on the basis of an incorrect understanding of the Migration Act  (e.g. that at some point the nonrefoulement claim would necessarily have to be considered), the power to reinstate the cancellation of the visa had not been validly exercised.

The outcome in this case reinforces that when the Statement of Reasons that is signed in connection with a decision to cancel a visa declares that there is no necessity to examine a nonrefoulement claim, that is a very strong indication that jurisdictional error is likely to have occurred, and that the decision to cancel is very vulnerable to challenge in the Federal Court!

If you have been following the reported decisions on Austlii, you will note (especially coming out of the AAT) that there seems to be a large number of cases involving visa cancellation on character grounds, in particular cancellation of Special Category visas held by New Zealand citizens who are long-time residents of Australia; in view of the fact that the Department seems to be making visa cancellation into a cottage industry, the more tools that are available to challenge these cancellations, the better!)

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