Mr Omar – setting a new precedent for refugees

Mr Omar was seven years old when he was orphaned and forcibly recruited to be a child soldier in Somalia. After escaping, he lived in a Kenyan refugee camp until he was 15, when he travelled to Australia under a permanent visa to live with his aunt. He has a severe intellectual disability and schizophrenia.

Like too many people with disability, Mr Omar found himself caught up in the criminal justice system, and later in prison. Under Australia’s strict migration laws, his visa was cancelled, and after his prison term was completed, he was sent to immigration detention.

Many criminal lawyers know the importance of being aware of visa cancellation laws on character grounds. When a person fails the 'character test', this can result in a visa being taken away or refused, which can have profound and often irreparable impacts on a person’s life, and the lives of their families and community.

Preventing deportation into danger

Given Mr Omar’s history of trauma and mental health issues, Victoria Legal Aid asked the Minister for Home Affairs or his delegate to use their discretion to restore his right to remain in Australia. It is clear that if he returns to Somalia, Mr Omar faces very real threats to his safety. People with an intellectual disability or mental health issues in Somalia face a high risk of being chained and imprisoned, suffering physical harm and severe discrimination.

Sending someone back to such a situation may be a breach of our international obligations regarding ‘non-refoulement’, meaning that under international agreements Australia has committed to not sending people back to their home country if that presents a serious risk to their safety.

The assistant minister made a personal decision not to restore Mr Omar’s visa, meaning that he did not have access to a review in the Administrative Appeals Tribunal. As with most decisions of this nature, the assistant minister chose not to consider Mr Omar’s non-refoulement claims.

His contention was that because Mr Omar could later apply for a protection visa (a different visa than his current one), it was when applying for that visa that his non-refoulement claims should be taken into consideration. Our representations on Mr Omar’s behalf focused on the fact that the minister should in fact consider non-refoulement factors when cancelling or restoring a visa.

On behalf of Mr Omar, Victoria Legal Aid then sought a review of the decision in the Federal Court. In March 2019, Judge Mortimer accepted that the assistant minister failed to carry out his statutory task. The minister appealed that decision, leading to a full sitting of five judges in the Federal Court, reflecting the likelihood that the decision would have a profound impact on how the Migration Act was implemented, particularly around refugee claims.

On 29 October, the five judges unanimously dismissed the minister’s appeal, finding that he failed to properly consider Mr Omar’s claims that he would be harmed. The court’s finding was made irrespective of Australia’s non-refoulement obligations.

The full court held that assistant minister (and by extension, the minister) must 'actively, intellectually engage with substantial or significant and clearly articulated representations made by a person'. In other words, the assistant minister must 'take responsibility for what he is doing', and grapple with the implications of his decision.

The court clearly stated that noting or acknowledging a significant representation made by the person is insufficient, and blanket statements that 'all matters were considered' is also inadequate.

What's next?

This decision sets a clear precedent for anyone whose visa is cancelled or refused on character grounds. While this case deals with decisions by a minister, the principles are likely to affect all decision-makers in the migration space.

This is a significant win that ensures that decision-makers genuinely consider people’s individual circumstances before making serious decisions about their status in Australia under the extensive powers they wield under the Migration Act.

Unfortunately, the court did not determine the most significant issues we raised, including:

• whether the assistant minister’s decision was based on misunderstandings of the Migration Act or its operation; and
• whether the decision-maker must consider our international obligations, rather than just the harm people are facing.

These questions remain unanswered.

Most importantly, Mr Omar is still in detention, where he has been for the past three years. This decision by the court means that the minister or his delegate will have to consider Mr Omar’s case once again. Victoria Legal Aid will continue to represent Mr Omar as he fights to remain in the country he’s lived in for the majority of his life.

More information

Read about mandatory visa cancellations.