FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124
Background Facts
In 2011, the Applicant migrated to Australia on a Subclass 202 visa.
In April 2017, he was convicted of offences committed against his wife and sister to which he was sentenced to a term of imprisonment for five years
The Applicant is a person who cannot pass the character test prescribed in s501(6)(a) and s501(7)(c) of the Act.
17 May 2018 – his visa was cancelled under s501(3A) of the Act. Another delegate of the Minister refused to revoke the cancellation decision in the exercise of the power conferred by s501CA(4) of the Act.
The Tribunal upheld the delegate’s decision.
Grounds of the Visa Cancellation Appeal
Whether Tribunal understood the Applicant’s assertion that, if the visa cancellation decision not revoked, the applicant 'must be returned his home country' in circumstances giving rise to a breach of 'non-refoulement obligations'
Whether Tribunal erroneously treated non-refoulment obligations as 'synonymous' with fulfillment by the applicant of 'criterion for a protection visa'
Whether the Tribunal failed to genuinely consider 'and intellectually engage with' reason submitted by applicant for cancellation decision's revocation
Whether there are error material due to the above
Cases cited that are useful
Ali v Minister for Home Affairs [2020] FCAFC 109 at [45]
A failure to “consider, by engaging in an active intellectual process, a clearly articulated ground raised in the representations provided by the affected person would amount to an error which may vitiate the putatively formed state of mind” pre-conditioning the exercise of the power
The Full Court said that the prospect of Australia acting in breach of its non-refoulement obligations under several international treaties had undoubtedly been raised by Mr Ali as “another reason” to revoke the cancellation of his visa.
His Honour’s comment in the last sentence emphasised that the consequence of non-compliance with Australia’s treaty obligations does not only impact on the person who might be returned to their home country. It impacts upon Australia’s reputation and standing in the global community
The Full Court went on to summarize and rejected the following submission advanced on behalf of the Minister
The Minister also submitted that the consequence of not making the revocation decision is not necessarily the appellant’s return to Ethiopia as there exists the opportunity for the appellant to make an application for a protection visa and for that reason there was no need to consider the issue under s 501CA(4). It was submitted that what the Assistant Minister was effectively saying in his reasons was that, ‘My decision will not lead to a breach of international obligations. I predict that because there’s a right to apply for a protection visa where these issues will be revisited.’ This, it was said was ‘not to ignore, but is to substantively respond to the claimed breach of international law.’
The Full Court concluded that the Minister’s omissions constituted a failure to comply with the requirements of s 501CA(4), namely the requirement that the Minister form the state of satisfaction required by s 501CA(4)(b) lawfully. The lawful exercise of the power required that the Minister consider and engage with the submissions. The Minister was “not entitled to ‘carve off’ a consideration of them for possible examination at a later stage and his attempt to do so constituted a reviewable error”
FCC’s Judgement
The most significant, in terms of weight, of the other considerations, are the international non-refoulment obligations and the extent of impediments if removed. Both of these considerations favour revocation of the cancellation decision. If not revoked, the applicant will face the very real risk of harm upon his return to Afghanistan. The applicant has no links with Afghanistan because he has never lived there and has no remaining family there. As a Shi’a of Hazara ethnicity, he will face persecution and his life may well be endangered. I note that the applicant is a single man aged 23 years old and with no children. I also note that the outcome of being returned to Afghanistan is not certain, nor is it an immediate consequence of non-revocation, because the applicant still has the opportunity of applying for a Protection visa. I should not speculate as to what might or might not occur in future decision-making.
The consequence of that error is that the Tribunal failed to grapple with and decide the question of whether breach by Australia of its international law obligation was a reason to revoke the cancellation decision in the discretionary exercise of the power conferred by s 501CA(4).
The Tribunal avoided the question because it assumed (erroneously) that a breach by Australia of its international law obligations might be avoided by the decision-maker on a future protection visa application, such that the applicant would be in no worse position than he otherwise would be if the Tribunal decided for itself the existence of the obligation and the consequences for Australia of its breach.
What can we learn from this case?
Minister and Tribunal should properly access all the criteria set out in the Ministerial Direction for visa cancellation although some of the assessments are reflected in the criteria for other visas to which a person whose visa has been cancelled is eligible to apply for. Failure to do is a jurisdictional error.