Revisiting Important Full Court Decision on Visa Cancellation
Why is it important?
It offers a new possible basis to challenge a decision to refuse to revoke the mandatory cancellation of a visa on character grounds.
Background of the case
A citizen of Lebanon holding a subclass 820 visa
Following mandatory cancellation of his visa, provided with an opportunity to make representations concerning the reasons why cancellation decision should be revoked, and visa to be reinstated
In response, the visa applicant claims fear of returning to Lebanon due to harm that he would face if forced to return to Lebanon – not explicitly non-refoulement
The Assistant Minister decided not to revoke because since the visa holder was not prevented by section 501E of the Migration Act from making an application for a Protection Visa, it was “unnecessary to determine whether non-refoulement obligations” were owed to the visa holder
Was the Minister’s decision not to revoke cancellation contains any jurisdictional error?
The Assistant Minister made a decision based on incorrect understanding of the law. In that decision, she stated that non-refoulement claims can be claimed under the Protection visa application. As a matter of fact, because an application for a Protection visa can be refused purely on character grounds, it is entirely possible that questions concerning whether an applicant has a well-founded fear of persecution on Convention-related grounds, or whether there is a real risk that the applicant would suffer significant harm on return to her/his home country, and thus be entitled to complementary protection, might never be decided.
Judges also identified another Jurisdictional Error made by the Assistant Minister as she failed to consider whether the forms of harm that can be received upon forcing back to Lebanon, not necessarily related to Australia’s non-refoulement obligations, were a reason for revoking the cancellation of the visa.
What can we learn from this?
With protection visa application, if the person has character issue not meeting 4001 and no matter how much non-refoulment obligation the person may produce, the application may be refused character grounds before there are any considerations as to whether the applicant is entitled to either refugee status under s36(2)(a), or complementary protection grounds under s36(2)(aa) of the Act.
The Act does not fix any “order of proxity” by which the various criteria for grant of a protection visa must be considered.
How can we help you?
If you have a visa cancellation please contact us. Our immigration lawyers are well trained to handle highly complex matters so book one of our lawyers to seek professional advice now by calling 02-72002700 or email us to book in a time at info@ahclawyers.com
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