Australian Immigration Daily News

How important do you think it is to read every single word in a decision of the Administrative Appeals Tribunal carefully? 

Would you be prepared to accept that it is exceptionally, extremely, incredibly, unbelievably important that you do so? 

If you are not yet convinced, or even if you are convinced, keep reading! 

A recent decision of the Federal Circuit Court, in the case of Naqvi & Anor v Minister for Immigration & Anor (2018) FCCA 793. 

This decision illustrates the principle that “words matter”, and that the actual terms used in a Tribunal decision can make all the difference in the world! They can mean the difference between a person's being able to remain lawfully in Australia, or of becoming an unlawful non-citizen and of being forced to return to her/his home country, even if such a return might expose the person to a risk of persecution on the grounds of religion. 

Here was the story of the Naqvi case: 

The visa holder originally arrived in Australia on a student visa in 2008. In 2012, he was granted a 457 visa, under which he worked as a cook for his sponsoring employer.  However, in September 2015, the employer went into liquidation.  

Then, in 2016, the Department issued a notice of intention to consider cancellation of his visa, on the basis that he was in breach of Condition 8017(3)(b), on the basis that he had ceased employment for a period exceeding 90 days. 

The visa holder's response was that he had been unable to obtain a new sponsor within 90 days after his original sponsor had gone out of business because he had been busy caring for his wife and their new baby.  The applicant informed the Department that he had finally found a new employer to sponsor him, and asked for more time to provide proof of this sponsorship. 

Nonetheless, the Department proceeded to cancel his 457 visa. 

The visa holder then sought merits review before the Tribunal. 

In the proceedings before the Tribunal, the visa holder claimed that he was a Shia Muslim, and that he feared for his family's safety if they were to be forced to return to his home country, Pakistan. 

Although the Tribunal accepted that Shia Muslims have been persecuted in Pakistan, it found that this fact alone was not enough to demonstrate that the applicant and his family would be likely to be subjected to harassment or other treatment that would contravene any of Australia's international non-refoulement obligations. 

The Tribunal thus proceeded to affirm the Department's decision to cancel the visa. 

Are you able to see “what's wrong with this picture”? 

The problem here, as identified by Judge Riley of the Federal Circuit Court, was that the Tribunal had applied the wrong test when it evaluated the question of whether the cancellation of the visa would be contrary to Australia's non-refoulement obligations. 

The correct test for determining whether a person is owed non-refoulement obligation is not whether it is “likely” that the person will be subject to persecution for “Convention-related” reasons. 

Rather, as stated in section 5J(1)(B) of the Migration Act,  the correct test for determining whether a person may be characterised as a refugee under the Act, is whether there is a real chance that the person would be subjected to persecution for a Convention-related reason if returned to his home country. 

So: by failing to apply the correct test, the Tribunal failed to evaluate properly whether the visa holder was owed non-refoulement obligations. 

Consequently, the Tribunal failed to carry out a proper analysis of whether the visa should be cancelled. 

And so the Tribunal committed jurisdictional error, requiring that its decision to affirm the cancellation of the visa had to be quashed, and the case sent back to the Tribunal for re-determination. 

It would be all too easy when reading a Tribunal decision to quickly “gloss over” the language used, and to miss the fact that the Tribunal had described the test for determining whether a person is owed non-refoulement obligations on the basis of whether it was “likely” that the visa holder and his family would be subject to persecution. 

So the case is “proof positive” that words do matter, a lot. An awful lot!!