Must the Minister consider whether the visa holder is owed non-refoulement obligations by Australia?

That is,  if the Minister fails to consider whether a visa holder is owed non-refoulement obligations, is the decision not to revoke a mandatory cancellation is affected by jurisdictional error and must therefore be quashed?

That issue  was presented for determination by the High Court of Australia in September 2020, in the case of Applicant S270/2019 v Minister for Immigration and Border Protection (2020) HCA 270 (9 September 2020).

In that case the applicant had arrived in Australia in 1990, at the age of 15, having left Vietnam at the age of 7 and then spending 8 years in a refugee camp in Hong Kong. He had been granted a humanitarian visa, which did not have as a criterion that an applicant must be entitled to protection under the Convention relating to the Status of Refugees or the subsequent Protocol.

The applicant had later been granted a Five Year Resident Return Visa, and, as the holder of this visa, he had traveled back to Vietnam and then returned to Australia.

During the period of his residency in Australia, the applicant had compiled a significant criminal record: in 2004, he was convicted of a series of offences, including “aggravated break and enter with intent” and was sentenced to a term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 6 months; and then, in 2013, he was convicted of “aggravated break and entry with intent in company” and was sentenced to a further 6 years imprisonment with a non-parole period of 3 years and 6 months.

It was while he was serving this second term of imprisonment that the Minister proceeded to cancel his Resident Return Visa on character grounds.

The applicant was given the opportunity to request the revocation of the cancellation, and to make representations in support of this request.

In these representations, the applicant did not advance any claim to fear persecution or other serious harm should he be returned to Vietnam.

This section is from VISA’s Corporate Partner the Migration Messenger.

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