Extent of any impediments if removed

 

Federal Court. Para 14.5 of Direction No 79 provides, as a consideration to be taken into account in determining whether to revoke under s 501CA(4) a visa cancellation: "The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country)..." Does para 14.5 require a qualitative assessment about not just the nature of the impediments, but also their likely severity? Is the statement in brackets concerned with a comparison between the situation in the non-citizen's hope country and the situation in Australia? We summarise the answer to these and other questions.

The questions to the Federal Court (FCA) were as follows:

Question 1: Does paragraph 14.5 of Direction No 79 require a qualitative assessment about not just the nature of the impediments of removal from Australia, but also their likely severity?

Question 2: Is the statement “in the context of what is generally available to other citizens of that country" concerned with a comparison between the situation in the non-citizen's hope country and the situation in Australia?

Question 3: If the answer to Question 2 is "no", is what the non-citizen enjoys in Australia irrelevant?

Question 4: Paragraph 14.1(1) of Direction No 79 provides: "In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to)". Can it be said that, if a factor "is simply not engaged on the material before the decision maker (whether material submitted by an applicant or otherwise), then it is clear that there may be no material non-compliance with the approach required by the Direction if a decision maker does not actively consider that factor"?

Question 5: The Applicant, who was self-represented before the Tribunal, did not lead any positive evidence about whether or not he would have access to his anti-viral medication in Vietnam, although he put, as clearly as he could, that he doubted he would have access to the medication. Was this "the kind of situation where, in order to engage with a factual representation clearly and repeatedly made, the Tribunal may have needed to make some inquiries"?

Question 6: Was Tribunal required to make findings in respect of the factors contained in paragraph 14.5 of Direction No 79?

The FCA answered those questions as follows:

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