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Full Court Speaks on Visa Cancellation and Non-Refoulement

Must the Minister consider whether Australia has non-refoulement obligations before proceeding to cancel a person’s visa on character grounds?

This complicated and difficult question was addressed in a decision that was handed down last Friday,

9 September 2016, by a panel of the Full Court of the Federal Court in the case of Minister for Immigration and Border Protection v Le (2016) FCAFC 120.

This case came before the Full Court as the result of an appeal by the Minister against an earlier decision in the same case by Judge Logan of the Federal Court that Judge Logan had handed down late last year, on 24 December 2015 – Le v Minister for Immigration and Border Protection (2015) FCA 1473.

In that earlier decision, Judge Logan ruled that the Minister must consider whether Australia has non-refoulement obligations to a visa holder before exercising visa cancellation powers.

However, the Full Court overturned Judge Logan’s ruling.

It is important for migration lawyers, non-lawyer registered migration agents and other persons who are concerned with migration issues to be aware of the Full Court’s decision, and its implications for visa holders: It appears that the Department has been, and will continue to be, extremely active in seeking to cancel the visas of non-citizens on character grounds. Consequently, it is important to understand the boundaries and limits of the visa cancellation powers, as well as to understand what grounds of challenge will be effective in the Federal Courts, and what grounds will not be of assistance.

The background of this case was that the visa holder in question, Ms Tam Thi Le, had been accepted to be a refugee under the Refugees Convention in 1984, and had been granted what was known as a “K4011 Refugee (Vietnamese) Permit” which enabled her to travel to Australia. After arriving in Australia also in 1984, she had subsequently been granted two Resident Return (Subclass 155) visas.

According to the Full Court’s judgment, Ms Le had travelled back to Vietnam, and had then returned to Australia, on two occasions since her original arrival in Australia. It would appear that this travel history might have raised some considerable questions as to whether Ms Le would have been able to satisfy the criteria for a Protection visa if she had sought such a visa. However, that particular issue was not canvassed in the Full Court’s decision.

It was apparently not contested that Ms Le had compiled a “substantial criminal record” and that she thus did not satisfy the character test: In 2000, she was convicted in Queensland of trafficking in dangerous drugs, for which she received 8 years imprisonment, and she received a second conviction in December 2011 for the same offence.

In the reasons given by the Minister for cancelling Ms Le’s visa, the Minister had stated that because Ms Le had not raised any claims that Australia’s non-refoulement obligations needed to be assessed in connection with the proposed cancellation of her visa, and that because she was not barred from applying for a protection visa, that it was unnecessary for the Minister to consider whether non-refoulement obligations were owed to her before cancelling her visa.

Judge Logan rejected this position. It was Judge Logan’s view that the Minister had committed jurisdictional error, and that the Minister was required to consider whether Australia owed non-refoulement obligations to Ms Le even if she had not made any claims that the Minister was required to do so.

In turn, however, the Full Court found that Judge Logan’s view was erroneous, and that in the circumstances of the case it was not mandatory for the Minister to consider whether any non-refoulement obligations existed before proceeding to cancel Ms Le’s Resident Return visa.

Rather, the Full Court ruled that where it is open for a visa holder to make an application in Australia for a Protection visa (e.g. such an application is not prevented because a previous application has been made and refused), it is not mandatory for the Minister to consider Australia’s non-refoulement obligations when determining whether to cancel a visa on character grounds.

The Full Court reasoned that the question of whether non-refoulement obligations exist can be assessed when the Protection visa application is being processed, and that therefore there is no need for the issue to be considered by the Minister when a visa cancellation is being considered on character grounds.

However, the Full Court went on to say that the situation is different when the visa holder is unable to apply for a Protection visa.

In that situation, the Court ruled, it is mandatory for the Minister to consider both whether a visa cancellation on character grounds would be contrary to Australia’s non-refoulement obligations, and also whether the legal consequence of the visa cancellation would be that the visa holder would remain in immigration detention indefinitely.

A really interesting question is left open in the wake of this decision: Suppose a person already holds a Protection visa, and then is convicted of criminal conduct that causes her/him to fail the character test. And suppose further that the grounds for the grant of the Protection visa continue to exist – that the visa holder would be subject to persecution if returned to the “receiving country” or would be at risk of suffer significant harm if returned? In that situation where should the balance be struck? Does the “interest in protecting the Australian community from the risk of harm” outweigh Australia’s non-refoulement obligations?

What do you think?