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Cancellation of Protection Visas

Should Australia be cancelling the visas of persons who are owed protection under Australia’s international treaty obligations?

Is it enough that Australia punish people who are convicted of criminal offences while holding protection visas, or should they be “sent back” to the countries of their nationality notwithstanding that they would be at risk of harm?

How should the balance be struck between the very legitimate interest in protecting the Australian community from the risk of harm associated with releasing a person with a serious criminal history, and, on the other hand, Australia’s “non-refoulement” obligations?

These questions are not a matter of pure theoretical debate, given how frequently the Department exercises the power to cancel visas on character grounds, and, indeed, given the “mandatory” visa cancellation provisions that have been incorporated into the Migration Act.

And these questions were all raised by a recent decision of Justice Colvin of the Federal Court in the case of Suleiman v Minister for Immigration and Border Protection (2018) FCA 594 (2 May 2018).

The background of this case is that the visa holder had arrived in Australia at the age of 16 in 2004 as an unaccompanied stowaway.

He was subsequently granted a global special humanitarian visa.

However, in 2016, he was convicted of having committed a variety of offences at the home of his former partner.  These included: setting fire to a car in the carport; breaking into the home and smashing numerous items of property; and forcing his way into a bedroom where his former partner and their two children had taken refuge.

The visa holder was sentenced to two years of imprisonment in relation to two separate charges.

While he was serving the prison sentences, a delegate of the Minister revoked his visa under the mandatory visa cancellation provisions. 

Another delegate of the Minister decided that the cancellation should not be revoked, so the visa holder then sought review in the AAT.

In conducting its review of the case, the Tribunal found that it was bound to proceed under the guidance of Direction 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation under s 501CA.

Direction 65 identifies that there are three “primary considerations” that must be taken into account when the Tribunal considers whether to revoke a mandatory cancellation.  These are the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community.

The Direction also refers to “other considerations” which must be taken into account.

These “other considerations” include Australia’s nonrefoulement obligations.

The Direction also includes wording which says that the primary considerations “should generally” be given greater weight than the “other considerations”.

What occurred in this case was that the Tribunal characterised the question of whether the visa holder would face a risk of harm if he were to be returned to his country of nationality  not as an “other consideration”, but rather as a “secondary consideration”.

Justice Colvin found that this approach by the Tribunal amounted to jurisdictional error.

Justice Colvin reasoned that the use of the term “secondary” implied that “other” considerations, such as nonrefoulement obligations, implies that Direction 65 establishes a “hierarchy” of considerations that are to be applied in all circumstances, meaning that the three considerations that are listed as “primary considerations” in Direction 65 would outweigh all other considerations in every case.

In Justice Colvin’s view, this was not the correct approach, or interpretation of Direction 65.

Rather, it was Justice Colvin’s view that what is required by Direction 65 is a more nuanced approach,  where the “weight” to be assigned to any particular “consideration” is determined on a case-by-case basis.

And the consequence of this interpretation is that there may well be some cases where considerations that fall under the heading of “other considerations” in Direction 65 – such as Australia’s non-refoulement obligations – actually do outweigh those considerations that fall under the heading of “primary considerations” in Direction 65.

So one of the lessons here is that when the Tribunal or another decision-maker adopts an approach that does not follow the precise wording of a direction made under section 499 of the Act, then jurisdictional error may have occurred.

And another, and perhaps overriding, lesson of this case is that the nonrefoulement obligations that are owed to a visa holder may in certain cases outweigh other considerations, even the “ primary considerations” listed in Direction 65.

And the consequence may by that there are indeed circumstances where a person who has a significant criminal record may nonetheless be able to avoid visa cancellation due to these nonrefoulement obligations.

At a minimum, nonrefoulement obligations are not to be taken as being outweighed by the listed “primary considerations” in Direction 65 in every case.

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  • Owen Harris
    Owen Harris Wednesday, 13 June 2018

    Yes interesting case. Thanks. You may recall that late last year (as part of the disallowed (thankfully) Migration Legislation Amendment (2017 Measures No. 4) Regulations 2017) the Minister attempted to bring in a clause that would have prevented anyone being able to get a BVE on the basis of having had a visa cancelled on character grounds, so if you were cancelled you wouldn't even be able to get a BVE while you appealed the decision. You were stuck in Immigration Detention until the outcome of your AAT appeal (and presumably shipped home forthwith).
    Refoulement grounds are almost impossible these days with the way the Minister interprets the safety aspects of moving to another area in the country of concern (its safe in Kabul for Hazaras cos there's a million living there so the Taliban wont find you in that crowd).

  • Guest
    Paul O Thursday, 14 June 2018

    The argument to keep a refugee in Australia after committing serious crimes is clearly a situation where doing good will cause harm to those innocent Australian Citizens who rely on the law to protect them.

    Whilst it might sound like a great argument utilising nonrefoulement obligations we have committed to in order to protect the right of a refugee to remain in Australia after becoming a safety risk to our citizens it places Australians at risk.

    If the intention of the law is to cause harm to Australians and to ensure Protection Visa applicants are immune to punishment such as removal of Visas and deportation, but have the legal Protection to live in Australia regardless the crimes they commit and are further free to harm Australians at will with impunity other than a jail sentence, this concept is clearly wrong in all ways.

    The question is why would we, as Australians and Australian legal people, fight for this right for Refugees who have committed and will commit more serious crimes against Australians to live regardless of the consequences to Australians and give the refugee Rights and privileges not intended in the Migration Law simply because an argument in law can be argued for this?

    To suggest the minister for Immigration has no right to protect Australian Citizens in favour of keeping criminals in our country is wrong in all ways. Who, if not the Government, is responsible for the protection of Australians?

  • Owen Harris
    Owen Harris Thursday, 14 June 2018

    Very well put Paul. I agree with you 100%, although I don't think anyone was implying the Minister shouldn't be able to protect the public or should have no rights. I have zero sympathy for those who are found guilty by our justice system and their matters have been finally determined in the courts. I have had a number of clients sent home that way. Where my frustration comes in is where the clients have not completed their appeal processes (and again this is open to abuse as we all know). I have had clients who couldn't mount a proper defence because they were locked up in immigration detention (or sent to Nauru or XMAS Island for "administrative purposes"). I have also had clients whose charges were dropped only for the Minister to say "well I still think he's a bad person so I'm not going to release him". That is what I struggle with. Keeps the job interesting :o

  • Guest
    Paul O Thursday, 14 June 2018

    Yes Owen. My comments were related to where the charges led to a conviction assuming all legal appeals were done and the minister cancelled the visa.
    However, there are many cases where an acquittal can be obtained due to an error in law and the guilty go free. This is another problem with the law, it is too complicated to be effective and open to challenges on many levels.
    If they did the crime then suffer the punishment.
    If they did not do the crime then they are innocent.
    The legal system has restrictions in place on time to apply and put together cases, legal people with varying degree of experience and ability all submitting cases to the courts with Judges with varying degrees of skill and experience in interpreting the law.
    Seems like Rafferty's rules to the outside observer.

    What would happen if one of these refugees had a visa cancelled, it was overturned in the AAT or courts, then he/she went on to kill an Australian or disable them for life.
    What compensation would there be?
    How would the legal person responsible for this feel?
    What would the people think about this?
    Simply stating the law was followed does not bring a person back to life or remove fear of living in their home or justify no punishment due to a technicality.

    I was always stunned by a court case involving 2 young men, 17 and 20 who raped and murdered a 75 year old grandmother.
    Sentences 3 years (Out in 18 months) and 5 years (out in 24 months)
    Is that all a defenceless raped grandmothers death is worth?

    Then we have ridiculous punishments being handed out to repeat offenders and often those who commit serious crimes, given warnings and in some cases no Jail time, even after multiple cases have been heard in the courts some including weapons and armed robbery.

    Depriving people of the opportunity to mount a proper defence seems to be endemic in many legal systems. I am not sure why this is. Many countries have this situation.
    Charged with a crime
    Detained with no rights to communication or phones
    No access to internet
    Limited access to legal people
    Still need to prepare a defence

    That element of ours and many other legal systems is pure abuse. Yet it still goes on now in the 21st century and that is a reflection on our legal system.
    It needs to change.
    I can cite so many cases overseas where this abuse led to innocent people being detained for months and up to 20 years without court hearings.
    That is just wrong there and here.

    At the end of the day the Australian people have no Faith in our legal system's ability to protect the people. This is so sad to see but a reality of the complicated and in many cases ineffective legal system at both policing and court levels.

  • Guest
    Bikkar Singh BRAR Lt Col Retd Thursday, 14 June 2018

    I agree with Paul. Our safety is more paramount than the right of the criminal refugee.

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Guest Thursday, 21 June 2018
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