Non-refoulement obligations & s 501CA(4): Part 8

Federal Court. Applicant's representations under s 501CA(3) included: "People like me, who have family in first world countries ... are often kidnapped and held for ransom [in El Salvador]... I would be a prime target". Did the "circumstance that the claims were not supported by objective country information" render them "insignificant so as to relieve the Minister of the obligation to consider them"? Should claims related to Australia's non-refoulement obligations have expressly referred to those obligations? Minister failed to assess non-refoulement claims on the basis that such claims would be considered if and when a protection visa application were. Was that a proper basis?

The Minister mandatorily cancelled the Applicant's visa under s 501(3A) of the Migration Act 1958 (Cth) on character grounds.

The Applicant then made representations to the Minister under s 501CA(3), seeking revocation of the visa cancellation, as follows:

I understand that my visa has been cancelled and I am to be deported back to the country of my birth, in El Salvador. Since hearing this news I have suffered depression and panic attacks. The situation in my home country, for me, is extremely dangerous to my life and welfare and my return under those conditions will most likely result in adversely affecting my family in Australia, as well. Returning to El Salvador will likely be a death sentence for me. Many people there are killed every day by the Mafias who control it. People like me, who have family in first world countries as Australia are often kidnapped and held for ransom. They demand money from our families who often cannot pay. Often they kill the kidnapped person anyway. I would be a prime target of these people. There is much human trafficking and drug trafficking there. What I say about the conditions in my country and the danger to my life, as well as the burdens to my family in Australia, can be confirmed by the El Salvador consulate or embassy. Please, I would rather remain in jail in Australia for the days of my life than be returned as ‘set free’ to El Salvador.

As the Applicant did not pass the character test, the question to the Minister under s 501CA(4)(b)(ii) was whether there was another reason why the cancellation should be revoked.

The Minister decided under s 501CA(4) not to revoke the visa cancellation and provided reasons that included the following passages:

20. ... I accept that [the Applicant] would face hardship arising from his religion and the generally dangerous security situation were he to return to El Salvador...

38. ... I further acknowledge that the general security situation in El Salvador is very dangerous, though this is true for the whole population ...

The Applicant eventually applied to the Federal Court (FCA) for judicial review of the non-revocation decision.

The questions to the FCA were as follows:

Question 1: The Full Court of the FCA (FCAFC) had held in Omar as follows, in the context of s 501CA(4): "Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia’s non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made". Did the "circumstance that the claims [made by the Applicant here for the purposes of s 501CA(3)] were not supported by objective country information" render them "insignificant so as to relieve the Minister of the obligation to consider them"?

Question 2: May the "absence of corroborative evidence ... legitimately bear on the manner in which such claims are considered and determined"?

Question 3: Did the Minister consider those claims?

Question 4: Can it be said that "the imperative to construe the Minister’s words beneficially [i.e. not overzealously scrutinised with an eye keenly attuned to the perception of error] does not require that the meaning of the words be stretched beyond their natural capacities"?

Question 5: Should the Applicant's claims related to Australia's non-refoulement obligations have expressly referred to those obligations?

Question 6: Can it be said that "the existence of non-refoulement obligations is to be regarded as a mandatory relevant consideration in every case falling for the Minister’s consideration under s 501CA(4) in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986)"?

Question 7: If the answer to Question 6 is "no", was the existence of non-refoulement obligations to be regarded as a mandatory relevant consideration falling for the Minister’s consideration under s 501CA(4) in the particular circumstances of this case?

Question 8: If the answer to Question 7 is "yes", can it be said that, regardless of Direction 79, "had the Minister determined that Australia owed non-refoulement obligations to Mr Hernandez, that would be a factor capable of weighing in favour of revocation of the cancellation decision in the exercise of the discretionary power conferred by s 501CA(4)"?

Question 9: If the answer to Question 8 is "yes", can it be said that, "if the decision-maker responsible for assessing Mr Hernandez’s visa application were to make findings of fact giving rise to non-refoulement obligations at international law, the existence of those obligations would be irrelevant to the exercise of the mandatory power conferred by s 65"?

Question 10: If the answer to Question 9 is "yes", which means that:

  • the existence of non-refoulement obligations was to be regarded as a mandatory relevant consideration falling for the Minister’s consideration under s 501CA(4) in the particular circumstances of this case
  • if the Minister determined that Australia owed non-refoulement obligations to the Applicant, that would be a factor capable of weighing in favour of revocation of the cancellation decision
  • those obligations would be irrelevant to the exercise of the mandatory power conferred by s 65

does it follow that the Minister's failure to consider those claims, based on his view that those claims would be considered in the context of a protection visa application, was a material error to the outcome of the Minister's decision?

The FCA answered those questions as follows:

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