The confused construction of ‘non-refoulement’ in the Ministerial Directions for visa cancellations

Chris Honnery

29.04.20

The number of visa cancellations on character grounds has increased by over 1100 per cent in the wake of December 2014 amendments to the Migration Act 1958 (Cth) (the Act). While outlining all the ways a visa holder can have their visa cancelled is beyond the scope of this analysis, there are a range of scenarios when a person’s visa might be cancelled along with mandatory cancellation provisions, which stipulate when a visa must be cancelled. A person subject to visa cancellation has a short timeframe to submit a request to the Department of Home Affairs (DHA) that the cancellation of their visa be reversed. Direction 65 and its near-identical successor, Direction 79, set out a framework for determining whether to revoke a visa cancellation. This framework guides people subject to visa cancellation, who are advised by DHA to address the factors listed in the Direction when making a revocation request, and binds delegates of the Minister for Home Affairs and the Administrative Appeals Tribunal (AAT) when they are deciding whether to revoke a visa cancellation. One of the factors listed in the Directions for decisionmakers to consider when deciding whether to revoke a visa cancellation is the existence of ‘international non-refoulement obligations’. However, there is considerable confusion as to how this term should be construed.

The difficulty in construction stems from whether the Directions’ references to international non-refoulement obligations mean Australia’s obligations under international treaties or the more restrictive protection obligations codified in the Act.

This post argues in support of the former view. It examines the discordant interpretation of non-refoulement obligations throughout the Federal Court of Australia’s visa cancellation case law. It also considers factors perpetuating the prevailing confusion, such as the wording of the Directions and the Full Federal Court’s reluctance to provide clarity on the issue despite having recent opportunities to do so. The interpretational divide is of immense importance because what constitutes refoulement under international law might not satisfy the narrower protection visa criteria in s 36 of the Act, and what interpretation is adopted may determine whether a person subject to visa cancellation gets their visa back or spends years in immigration detention on a deportation pathway.

The legislative backdrop

Almost all references to international law were removed from the Act through 2014 amendments that codified Australia’s interpretation of its protection obligations and introduced a statutory definition of ‘refugee’ as a criterion for the grant of a protection visa under s 36(2). References to international treaties are, however, preserved in the definition of ‘non-refoulement obligations’ under s 5, which refers to Australia’s obligations arising from the Convention relating to the Status of Refugees (Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Last year, the Full Court confirmed in Ibrahim v Minister for Home Affairs (Ibrahim) that the statutory definition of non-refoulement obligations

encompasses obligations undertaken by Australia pursuant to certain international treaties (and not just the Refugees Convention). It is not confined to the protection obligations to which s 36(2) refers.

The international instruments referred to in the definition of non-refoulement also appear in Directions 79 and 65, issued by the Minister under s 499 of the Act. Notably, ‘international non-refoulement obligations’ heads a list of ‘other considerations’ that must, if relevant, be taken into account by a decision-maker when deciding whether to revoke the mandatory cancellation of a visa. Paragraph 14.1 of the Directions relevantly stipulates:

A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.Australia has non-refoulement obligations under the Refugees Convention; the CAT and the ICCPR.The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

It is this final point that has been cited in support of construing the Directions as referring to the statutory codification of Australia’s protection obligations.

Divergent decisions of the Federal Court

In his recently overturned judgment GBV18 v Minister for Home Affairs, which concerned a judicial review challenge to the AAT’s decision not to revoke the cancellation of the Applicant’s Humanitarian Visa, Anderson J opined that the “key instruction” in Direction 65 was that “decision-makers should follow the tests enunciated in the Act”. Justice Anderson reasoned (at [127]):

When Direction No. 65 referred to consideration of non-refoulement obligations, it was instructing the decision-maker to consider, not the obligations owed in international law by Australia, but the obligations that the Commonwealth Parliament has given effect to under the Act.

Contrastingly, in the subsequent decision of DGI19 v Minister for Home Affairs, Moshinsky J was less convinced regarding the interpretation of ‘non‑refoulement’ in Direction 65, suggesting that on one view paragraph 14.1 “conflates Australia’s international non-refoulement obligations and the protection visa criteria under the Act.” This point was picked up in GBV18’s recent appeal.

In its decision not to revoke the cancellation of GBV18’s visa, the AAT had deprecated GBV18’s claims on the basis of their generality and purported failure to establish “specific harm in a non-refoulement sense” based on his personal circumstances. The problem with this reasoning, as contended on behalf of the Appellant, was that a generalised risk of harm is capable of engaging Australia’s  obligations under the ICCPR, irrespective of whether there was a risk of targeted personal harm as required by s 36(2B)(c) of the Act, which deems that a person will not satisfy the criteria for a protection visa if “the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally”. Justice Anderson had found that s 36(2B)(c), “which has the potential to negate the existence of a complementary protection claim, was clearly an important limb in following the tests enunciated in the Act” (at [129]). On appeal to the Full Court, the Appellant submitted that it was illogical for his claims, which were put forward as engaging Australia’s international non-refoulement obligations, to be considered in light of the statutory modifications in s 36(2B)(c). However, by deciding the appeal solely based on a separate ground, the Full Court eschewed the thornier entanglements concerning the interpretation of ‘non-refoulement obligations’ in Direction 65.

The appeal in GBV18 was not the first time the Full Court had declined to clarify the interpretation of non-refoulement. A five-judge bench abstained from confronting the issue in the Minister’s unsuccessful appeal in Minister for Home Affairs v Omar (Omar). Justice Mortimer’s primary judgment in Omar, which was labeled “an outlier on the jurisprudential spectrum” by Anderson J in GBV18, had elucidated that when deciding whether to revoke a visa cancellation the key issue was whether Australia’s non-refoulement obligations are engaged in respect of the particular individual. Justice Mortimer held that non-refoulement obligations are not considered in the protection visa criteria because they are (at [58]):

as the High Court pointed out in Plaintiff M70, assumed by a State to a person as a consequence of the situation that person may face on return to her or his country of nationality.  At most, in determining whether the refugee and complementary protection criteria are satisfied, assessments of a not dissimilar kind may arise, but subject to statutory modifications of the content of the protection criteria. However, this relates only to the determination of one of the many criteria for the grant of a different kind of visa. There is no direct consideration of Art 33 of the Refugees Convention or the equivalent articles in the ICCPR and CAT.

This explanation, which was not overturned by the Full Court on appeal, highlights that although the protection visa criteria under s 36 might resemble Australia’s non-refoulement obligations in certain respects, the test for a protection visa is no more than similar to, and in actuality is entirely separate from, the non-refoulement obligations that fall to be considered in a decision of whether to revoke a visa cancellation. In DYY18 v Minister for Home Affairs Steward J doubted in obiter whether the Minister could lawfully consider a non‑refoulement claim that is not recognised under domestic law as being “another reason” to revoke a visa cancellation. However Charlesworth J’s recent judgment in Hernandez v Minister for Home Affairs(Hernandez) provided a cogent rejoinder to such doubts, finding that Australia’s obligations under international law are (at [63]):

clearly capable of furnishing “another reason” why the cancellation decision should be revoked. At the very least, it would be open to the Minister to conclude that Australia’s reputational interests may be adversely affected by a decision resulting in the deportation of a person in contravention of Australia’s obligations under international law.

Hernandez highlights the fallacy of construing the references to international non-refoulement obligations in Directions 79 and 65 as being commensurate to the criteria in s 36 of the Act.

The proposed interpretation of the Directions

The Directions’ express references to ‘international non-refoulement obligations’ ought to be construed in line with the definition of non-refoulement obligations in s 5 of the Act. Following the Full Court’s reasoning in Ibrahim, it is telling that the term ‘international non-refoulement obligations’ is used in the Directions as opposed to the discrete term ‘protection obligations’ that appears in s 36(2)(a) of the Act. To construe ‘international non-refoulement obligations’ as referring to the criteria for a Protection Visa under s 36 is to entangle two distinct concepts and expunge the significant distinction between international non-refoulement obligations and the protection visa criteria that was enumerated by the Full Court in Ibrahim and by Charlesworth J in Hernandez.

It is eminently logical that the breach of an international obligation may constitute another reason to revoke a visa cancellation, irrespective of whether the protection criteria under s 36 are satisfied. To fail to appreciate this is to make an error of law that is fundamentally material to the question in issue: a decision-maker must appreciate that non-refoulement claims will not necessarily be considered, or considered in the same way, in the event of a protection visa application. As Charlesworth J affirmed in Hernandez, the identification of non-refoulement obligations per se could not affect, and is irrelevant to, the outcome of a protection visa application.

Many people who have had their visas cancelled do not satisfy the s 36 criteria but are detained in immigration detention for extended periods due to Australia’s non-refoulement obligations not to return them to countries where they face harm. There is patently a standalone significance to ‘international non-refoulement obligations’ that arises in the visa cancellation context and may be engaged by an appropriately detailed representation from an applicant requesting that their visa cancellation be revoked. This was confirmed in Hernandez, where it was found that the applicant’s representations ought to have been understood to advance a discrete claim based on obligations Australia owed under international law. As things stand, Hernandez represents one of many diffuse single judge decisions from the Federal Court in the visa cancellation sphere. It remains for the Full Court to confirm the correct interpretation of the Directions and settle the issue once and for all.

The practical importance of prompt clarification

So long as Direction 79 remains in its current form it will perpetuate confusion along with lengthy and costly litigation. All the while, people who are subject to visa cancellation languish in immigration detention for years on end at exorbitant cost to taxpayers. In some cases applicants have had to wait in immigration detention for over a year just to receive judgment on their judicial review application following the lengthy revocation request process.

The urgent need for the Full Court to resolve the interpretation of international non-refoulement obligations is not just about avoiding excessive litigation or expense. It is also about the liberty of people who have had their visas cancelled and are potentially wrongfully detained in immigration detention due to the confusion spawned by the defective directions.

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Chris Honnery is a solicitor who primarily practises in administrative and refugee law. He acted as instructing solicitor for the Appellant in GBV18 and the Applicant in DYY18.

Suggested citation: Chris Honnery, ‘The confused construction of ‘non-refoulement’ in the Ministerial Directions for visa cancellations’ on AUSPUBLAW (29 April 2020) <https://auspublaw.org/blog/the-confused-construction-of-non-refoulement-in-the-ministerial-directions-for-visa-cancellations>