Tribunal to Consider Australia’s Non-Refoulment Obligations in Their Decision-Making Process

In this case of AJS19 v Minister for Immigration & Annor[1], the Federal Circuit Court decided that the risk of harm or persecution if removed from Australia was a matter to be weighed by the Administrative Appeals Tribunal in determining whether to affirm the delegate’s decision to cancel the visa.


Claiming Non-Refoulement Obligations in Partner Visa

 The Applicant’s partner visa was cancelled by the Minister under s 116(1)(g) of the Migration Act 1958 and r 2.43(1)(oa) of the Migration Regulations 1994. Those provisions give the Minister a discretionary power to cancel a visa if the Minister satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory.


The Applicant applied for review to the AAT, which affirmed the delegate’s decision. It was not in dispute that the power to cancel had enlivened. However, the Court held that the exercise of the discretion had involved jurisdictional error.


The evidence before the AAT was that the Applicant feared harm if he were to return to Myanmar, which would be the consequence if the cancellation were to be affirmed, and that he had applied for a protection visa. The AAT found that ‘Australia’s non-refoulement obligations would not be breached as a result of the cancellation because the Applicant is eligible to apply for a protection visa and, if it is determined that Australia has protection obligations towards the applicant, such obligations would be met’.


Decision of the Federal Court


The Federal Court essentially held that:

[33] None of the matters raised by the Applicant or raised by others on his behalf, in evidence before the Tribunal, referred to Australia’s non-refoulement obligations in terms. The Applicant very clearly however articulated (as a matter against cancellation of his partner visa) claims that he feared harm in a “practical and day to day sense”, should he be forcibly returned to Myanmar.


[34] The Tribunal found it unnecessary to consider whether non-refoulement obligations were owed to the Applicant in the course of its hearing because the Applicant was entitled to apply for a protection visa… However the legislative scheme operating in respect of the partner visa, and its cancellation, provided to the Tribunal a wide discretion to revoke a cancellation. The risk of significant harm to the Applicant on return to Myanmar or a real chance of persecution, whether for a Convention reason or otherwise, was a matter to be weighed by the Tribunal in determining whether to affirm the decision of the delegate…


Points to Ponder

In this case, the FCC referred to the case of BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 and decided to set aside the decision of the delegate and the AAT.

However, it is pertinent to note that unlike the case of BCR16, which dealt with the power under section 501CA(4) to revoke visas cancelled under section 501(3A), there is no power under the Act to revoke a visa cancelled under section 116.

Furthermore, section 501CA(4) expressly required ‘consideration of whether there is “another reason” to revoke the visa cancellation’. However, section 116 does not provide for ‘another reason’ why the discretionary power should be exercised in a visa holder’s favour.

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[1] [2019] FCCA 219 (5 February 2019)