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Section 501 character test does not apply to refugees owed protection obligations

A Federal Court decision handed down on 24 December 2019, by Rares J held that the character provisions of section 501 of the Migration Act do not apply to refugees.

A Federal Court decision handed down on 24 December 2019, by Rares J held that the character provisions of section 501 of the Migration Act do not apply to refugees. This section allows the Immigration Minister the power to cancel a person's visa if they don't pass the character test.

In this case, the applicant, 'Deva' was accepted as a refugee after he arrived at Christmas Island in March 2010, fleeing persecution from the Sri Lankan army. It was accepted by Australian authorities that he had been tortured by the army. In 2011, ASIO flagged him as a security risk, a decision Deva was not able to challenge as the claim was based on 'secret evidence' and so reasons for the ASIO decision could not be challenged. This security risk was downgraded in 2016, however Deva has been kept in detention since his arrival in 2010. In July 2019 the Minister exercised his power to refuse to grant a temporary protection visa, despite his acknowledgement of Australia's non-refoulment obligations for refugees. Deva is blind, schizophrenic and has other severe mental health issues.

Held: The PIC 4001 (character) is inconsistent with section 36 (1C)(b) of the Migration Act 1958 (Cth), which provides for the grant of a protection visa that specifies the nature of the convictions and the danger to the Australian community that will disqualify a person from eligibility for the grant of a protection visa. The prescription of the criteria in PIC 4001, as mandatory for every applicant for a protection visa, is inconsistent with the nature of the discretions to refuse to grant or cancel s visa that section 501 conferred directly on the minister.

See BAL19 v Minister for Home Affairs [2019] FCA 2189 (24 December 2019)

Updated