·   · 496 posts
  •  · 611 friends

Plaintiff Seeks Revocation of Decision to Cancel Visa

Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 (11 May 2022)

The plaintiff's visa was cancelled under s 501(3A) of Migration Act 1958 (Cth).  The plaintiff made representations seeking revocation of cancellation decision under s 501CA(4).  The delegate of Minister decided that there was not "another reason" to revoke cancellation decision.  The Court, in ruling upon this dispute, relied upon the Migration Act.

Facts:

The plaintiff was born in the Republic of Sudan and is a citizen of the Republic of South Sudan.  On 3 June 2006, the plaintiff entered Australia as the holder of a Refugee and Humanitarian (Class XB) Subclass 202 (Global Special Humanitarian) visa, which is not a protection visa.  On 19 September 2017, the plaintiff was convicted of two counts of unlawful assault and was sentenced to an aggregate term of 12 months' imprisonment.   On 27 October 2017, the plaintiff's visa was cancelled because the Minister was satisfied that the plaintiff had been sentenced to a term of imprisonment of 12 months or more and therefore had a substantial criminal record, and that he was serving a full-time custodial sentence ("the Cancellation Decision").

On that same day, 27 October 2017, an officer of the Department of Immigration and Border Protection notified the plaintiff of the Cancellation Decision and, under s 501CA(3)(b) of the Migration Act, invited him to make representations to the Minister about revocation of the Cancellation Decision.  The plaintiff sought revocation of the Cancellation Decision.  His representations to the Minister stated, among other things, that if he were returned to South Sudan he would face persecution, torture and death.  On 9 August 2018, a delegate of the Minister ("the Delegate") made a decision, not to revoke the Cancellation Decision because they were not satisfied that the plaintiff passed the character test or that there was "another reason" why the Cancellation Decision should be revoked ("the Non-Revocation Decision").

Under the heading "International non‑refoulement obligations", the Delegate stated that they considered it was unnecessary to determine whether non‑refoulement obligations were owed in respect of the plaintiff because the plaintiff could make a valid application for a protection visa and the existence or otherwise of non‑refoulement obligations would be fully assessed in the course of processing such an application.   In September 2018, the plaintiff completed his custodial sentence and he has been detained in immigration detention since then.  Also in September 2018, the plaintiff applied for a protection visa.  Two years later, in September 2020, a delegate of the Minister refused that application.

After obtaining legal advice in late 2020, the plaintiff filed out of time an application for a constitutional or other writ in this Court seeking, among other things, a writ of certiorari to quash the Non‑Revocation Decision and a writ of mandamus, or an injunction, to compel the Minister to exercise the power under s 501CA(4) of the Migration Act according to law ("the Application").  

Issues:

I. Whether, in deciding whether there was "another reason" to revoke cancellation decision, delegate required to consider plaintiff's representations raising potential breach of Australia's non-refoulement obligations.

II. Whether or not the delegate misunderstood the Migration Act and its operation.

Applicable law:

Migration Act 1958 (Cth), s 35A - provides for classes of visa that are protection visas.  

Migration Acts 501(6)(a) and (7)(c) - where ("the Minister") was satisfied that the plaintiff had been sentenced to a term of imprisonment of 12 months or more and therefore had a substantial criminal record. 

Minister for Immigration and Border Protection v EFX17 [2021] HCA 9 - provides that the person's visa is cancelled without the person being given procedural fairness. 

Migration Acts 48A(1B) - relevantly provides that the former visa holder "may not make a further application for a protection visa while in the migration zone".

Migration Acts 15 - provides that the status of the former visa holder is changed from that of lawful non-citizen to that of unlawful non-citizen. 

Migration Actss 198(2A)(b)198 - provides that the former visa holder must be taken into immigration detention under s 189 of the Migration Act and must be removed from Australia as soon as reasonably practicable under s 198

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 - provides that where a person's visa has been cancelled under s 501(3A)s 501CA provides a procedure for possible revocation of the original decision.  The procedure relevantly has two aspects – as soon as practicable after making the original decision, the Minister must: give the person a written notice that sets out the original decision. 

Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32 - provides that the Migration Act expressly recognises and draws a distinction between Australia's non‑refoulement obligations under international law and the extent to which those non‑refoulement obligations have been implemented in Australian domestic law. 

(Clarifying International Obligations for Removal) Act 2021 (Cth) - provides that the Minister must consider whether they are satisfied that the non‑citizen satisfies the criteria in s 36(2)(a) and (aa) before considering whether the non-citizen satisfies any other criteria for the grant of the visa.

CPCF [2015] HCA 1; (2015) 255 CLR 514 at 650-651 - provides that in point of constitutional principle, an international treaty (or customary international law obligations of a similar nature) can operate as a source of rights and obligations under domestic law only if, and to the extent that, it has been enacted by Parliament.  It is only Parliament that may make and alter the domestic law.

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 - provides that labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context.  These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker's] decision can be scrutinised". 

Analysis:

In deciding whether there was "another reason" to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), where the plaintiff remained free to apply for a protection visa under the Migration Act:

(1) the Delegate was required to read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non-refoulement obligations;

(2) Australia's international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and

(3) to the extent Australia's international non-refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa under the Migration Act.

The Delegate accurately identified that the plaintiff's representations raised a potential breach of Australia's non‑refoulement obligations but said that it was unnecessary to determine whether non-refoulement obligations were owed in respect of him because he was able to make an application for a protection visa, "in which case the existence or otherwise of non‑refoulement obligations would be fully considered in the course of processing that application".  The Delegate decided not to bring the plaintiff's representations in relation to non‑refoulement to account (in the sense of giving weight to them and balancing them against other factors) in making the Non‑Revocation Decision, reasoning that a protection visa application was "the key mechanism provided for by the [Migration Act] for considering claims by a non‑citizen that they would suffer harm if returned to their home country".  That approach was not inevitable, but it was not erroneous. The Delegate's reasons convey that the Delegate had read and understood the plaintiff's claim and proceeded on the basis that non‑refoulement obligations could be assessed to an extent and in a manner that they considered appropriate and sufficient to deal with the claim, namely in accordance with the specific mechanism chosen by Parliament for responding to protection claims in the form of protection visa applications.

Conclusion:

The Delegate's reasons do not reflect a misunderstanding of the operation of the Migration Act. No relief should be granted.  The plaintiff should be granted an extension of time to make his application.  The plaintiff should pay the costs of, and incidental to, the Special Case. 

0 0 0 0 0 0
Comments (0)
    Info
    Category:
    Created:
    Updated:
    SSL Certificates