In Le v Minister for Immigration and Border Protection, (2015) FCA 1473 (24 December 2015)
Ms Le had been born in Vietnam in 1956, arrived in Australia as a refugee in 1984. While in Australia, she was convicted of numerous matters involving a series of convictions for dealing heroin. These included: 1) an original conviction in 1997 for supplying and possessing heroin which resulted in a prison sentence of 4 years; 2) a second conviction in 2000 for trafficking in “significant quantities of dangerous drugs” which resulted in a second prison sentence of 8 years; and 3) a third offence, in 2007, again for trafficking in dangerous drugs, which resulted in another prison sentence of 8 years. On her third conviction her visa was cancellation by the Minister.
The Minister found the “countervailing considerations” against visa cancellation – including Ms Le’s longstanding residence in Australia, the impact of cancellation of her visa on her husband and the best interests of her 8 grandchildren in having her remain in Australia – did not outweigh her significant criminal record.
Judge Logan found that the Minister’s decision to cancel the visa based on Ms Le’s criminal record was not “unreasonable” (and thus not affected by jurisdictional error on that basis) the grounds that it was “disproportionate”, or a decision which “no reasonable decision-maker would make”.
Rather, Judge Logan found that the legal error that had been made by the Minister was in concluding that he did not have to consider Australia’s non-refoulement obligations because Ms Le had made no claims concerning these obligations in the submissions she had made concerning the Minister’s proposed cancellation of her visa.
His Honor held that although Ms Le was not required to raise the question of Australia’s non-refoulement obligations in her submissions to the Minister, because she had previously acquired the status of a refugee, the Minister was legally obligated to consider whether the visa cancellation would be contrary to the anti-refoulement provisions of the Refugees Convention. In order to reach a conclusion on that question, the Minister would have had, at least, to have conducted an analysis to determine whether Ms Le still retained “refugee status” (it was possible that she could have lost her refugee status by committing a “particularly serious crime”.
Implicit in Judge Logan’s decision is that the Minister was under an obligation to take Australia’s anti-refoulement obligations into account even though these obligations had previously been considered in connection with prior visa cancellation decisions.
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