Federal Court of Australia rules that government decision-makers must properly weigh risks of harm when cancelling or refusing visas on ‘character’ grounds
Minister for Home Affairs v Omar [2019] FCAFC 188
Summary
The Full Court of the Federal Court of Australia has reminded Government decision-makers of their responsibility to properly consider risks of harm and threats to safety when cancelling or refusing a visa on ‘character’ grounds.
The Court unanimously ruled that the Assistant Minister made a jurisdictional error in deciding not to revoke the cancellation of Mr Omar’s visa, by failing to adequately consider the risk of harm he would face on return to Somalia, including by deferring a consideration of Australia’s international non-refoulement obligations.
Facts
Mr Omar is a citizen of Somalia who was orphaned and forcibly recruited as a child soldier by the age of 7. He lived in a refugee camp in Kenya after fleeing Somalia when he was 8 years old. When he was 15 years old, he travelled to Australia under a permanent visa to live with his aunt. He has a severe intellectual disability and schizophrenia.
After arriving in Australia, Mr Omar became involved in criminal offending. His permanent visa was mandatorily cancelled in July 2016 due to his criminal record under subsection 501(3A) of the Migration Act 1958 (Cth). Mr Omar requested revocation of that decision and made submissions about the harm he would face if forcibly returned to Somalia, including being chained, imprisoned and physically harmed because of his mental health and intellectual capacity. Mr Omar argued that Australia’s non-refoulement obligations were engaged and relevant to any decision about revocation.
In February 2018, the Assistant Minister decided not to revoke the visa cancellation, declining to consider Australia’s non-refoulement obligations on the basis that they could be considered as part of a potential future protection visa application.
Mr Omar challenged this decision in the Federal Court in Omar v Minister for Home Affairs [2019] FCA 279. Justice Mortimer found that the Assistant Minister made a jurisdictional error, including by deferring consideration of Australia’s non-refoulement obligations. The Minister for Home Affairs appealed Mortimer J’s decision to the Full Court.
Decision
The Full Court found that the Assistant Minister had failed to carry out his relevant statutory function by failing to properly consider Mr Omar’s representations of the harm he would experience in Somalia.
In his decision, the Assistant Minister determined that it was not necessary for him to consider Mr Omar’s representations regarding Australia’s international non-refoulement obligations, including those deriving from the Convention on the Rights of Persons with Disabilities, the Convention Relating to the Status of Refugees, and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The Court found that the Assistant Minister’s belief that non-refoulement considerations could be deferred contributed to his failure to engage fully and meaningfully with Mr Omar’s representations about harm. The unanimous judgment held that the Assistant Minister’s approach failed to recognise the distinction between potential harm and the international obligations it may give rise to, articulated by Robertson J in DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [185].
The Court held that the statutory context imposes obligations to:
invite representations regarding revocation; and
form a view about whether there is ‘another reason’ to revoke a visa cancellation.
If representations are made, the Minister is obliged to consider whether to revoke the decision. In doing so, the Minister must not overlook significant matters, but give them proper, genuine and realistic consideration.
The Full Court unanimously held that, where representations are made about the harm facing a person on return to their country of origin, the Assistant Minister must do more than merely acknowledge or note those representations: he must actively intellectually engage with them, grapple with the implications of his decision, and, in short, “take responsibility for what he is doing” (at [38]), irrespective of whether those claims to fear harm invoke Australia’s international obligations.
The Court cited the observations of Chief Justice Allsop in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] with approval:
Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people.
The Minister’s appeal was dismissed with costs.
Commentary
Where a person fails the ‘character test’, visa cancellations or refusals can have profound and often irreparable impacts on a person’s life, and the lives of their families and community. The Full Court has made clear that people who face serious risks of harm if returned to their country of origin are entitled to have their cases considered in a meaningful way, reflective of the gravity of their situations.
In practice, Omar has already changed the way decision-makers deal with visa claims about the fear of harm on return to receiving countries. The decision applies to all relevant decision-makers, and has already been applied in the Federal Court[1] and adopted in the Administrative Appeals Tribunal and by delegates of the Minister.
The Omar decision sets a clear precedent for any person affected by a visa cancellation or refusal on character grounds who makes or seeks to make clear representations on any issue – but particularly harm if they are returned to their country of origin. It requires government decision-makers to actively and intellectually engage with clear and substantial representations made by a person affected by visa cancellations or refusals on character grounds.
The judgment may also have broader implications for upholding Australia’s non-refoulement obligations and protecting people’s right to freedom from cruel, inhuman and degrading treatment.
Mr Omar’s case has been returned to the Minister for Home Affairs to properly consider the risks of harm and to make a new decision about whether to revoke the cancellation of his visa.
For now, Mr Omar will remain in detention, where he has been for the past three years.
See the full decision here.
Hannah Dickinson is a Senior Lawyer and Accredited Specialist in Immigration Law at Victoria Legal Aid, and acted as Mr Omar’s lawyer in this case.
[1] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 (26 November 2019); AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205; XMBQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2134; CTB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2128 (18 December 2019); DGI19 v Minister for Home Affairs [2019] FCA 1867 (14 November 2019).