Australian Immigration Daily News

Suppose you have a client who does not satisfy the character test because she/he has a substantial criminal record.

Suppose also that it has been determined by the Tribunal that the client is owed non-refoulement obligations on complementary protection grounds.

In these circumstances, if the Minister exercises powers under section 501A(2) of the Migration Act to set aside the decision of the Tribunal and refuses to grant a protection visa, is there any legal theory available to challenge the Minister’s actions?

This issue was at the forefront of a case that was recently decided by Justice Moshinsky of the Federal Court of Australia, AQM18 v Minister for Immigration and Border Protection (2018) FCA 944 (21 June 2018).

Once again, this case highlights the difficult and complex problem of reconciling the tension between the visa refusal/visa cancellation powers on character grounds, and Australia’s international treaty obligations under the Refugees Convention.

To put the issue another way: Should Australia be refusing protection visas to people who are owed non-refoulement obligations under the Convention?

The background facts of this case were that the applicant had been sentenced to a “substantial period” of imprisonment (presumably considerably more than 12 months) for drug related offences. 

The applicant then applied for a protection visa on complementary protection grounds.

While this application was refused in the first instance by a delegate of the Minister, on review, the AAT concluded that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to her home country, there was real risk that she would suffer significant harm.  The basis upon which the Tribunal arrived at this conclusion was that the applicant had agreed to cooperate with the police and to act as a prosecution witness, and that her evidence had led to the arrest and imprisonment of a number of people who had been involved in a drug syndicate in Australia.  The Tribunal found that there was a real risk that if the applicant were to be returned to her receiving country, she could be arbitrarily deprived of her life by other members of the drug syndicate.

Despite these findings by the Tribunal, when the matter was remitted back to the Department, the Department again refused the application for a protection visa.

The applicant then sought merits review a second time in the Tribunal and the Tribunal again concluded that the discretion under s 501 to refuse the application should not be exercised, again because the applicant had been found to be owed non-refoulement obligations on complementary protection grounds.

It was at this point that the Minister interposed his powers to set aside the Tribunal’s decision pursuant to the Ministerial powers under section 501A(2), and issued a decision to refuse to grant the protection visa.

So, in this scenario, was there any basis on which the Minister’s decision could be effectively challenged?

Justice Moshinsky found that there was.

Why?

In the Statement of Reasons that the Minister had issued as the grounds for setting aside the Tribunal’s decision, the Minister had declared that notwithstanding the insertion of section 197C into the Migration Act, “Australia will continue to meet its international non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Act.

It will be recalled that section 197C provides that it is irrelevant for the purposes of section 198 whether Australia has non-refoulement obligations in respect of an unlawful non-citizen and that it is an officer’s duty to remove an unlawful non-citizen under section 198 irrespective of whether there has been an assessment of Australia’s non-refoulement obligations.

In other words, section 198 provides (in my opinion, bizarrely) that Australia will proceed to remove an unlawful non-citizen notwithstanding the fact that the person has been found to be owed non-refoulement obligations.

In my view, one may legitimately wonder whether section 197C is itself invalid as being inconsistent with Australia’s international human rights obligations.

In any event, Justice Moshinsky determined that the Minister’s decision to set aside the Tribunal’s decision and to refuse the protection visa was infected by jurisdictional error.

Justice Moshinsky determined that the Minister had committed error by proceeding upon an incorrect understanding of the law, specifically the effect of section 197C.

While the Minister had recited in his Statement of Reasons that Australia “will” continue to meet its international non-refoulement obligations, this statement did not accurately reflect the true effect of section 197C.

As was explained by Justice North in the important case of DMH16 v Minister for Immigration and Border Protection, the correct interpretation of the legal consequences of section 197C is that if an application for a protection  visa is refused, then the person will either be removed to their home country immediately, or, if the Minister has decided to consider “alternative management options”, the person will be detained  for a definite period while the Minister considers whether to exercise the power to grant the person a visa under section 195A – and if the Minister does not exercise the section 195A power, then the person will be removed to her/his home country.

Therefore, because section 197C has been introduced into the Migration Act,  it can no longer be correctly said that the legal consequences of the refusal of a protection visa include that “Australia will continue to meet its international non-refoulement obligations.

So, to summarise what happened her: the Minister proceeded on an incorrect understanding of the legal consequences of refusing the protection visa. 

And for that reason, the Minister had fallen into jurisdictional error, and the decision to set aside the Tribunal’s decision was itself set aside, or quashed.

Yep, Justice North’s decision in DMH16 is extremely powerful, and should be kept in mind whenever the Department/Minister acts to refuse or cancel the visa of a person who has been found to be owed non-refoulement obligations!