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.