Characters, Crimes and Assessing The Staleness of Refugee Status


If a person has come to Australia and was granted refugee status, even if it was a long time ago, that status remains a live issue in assessing whether to cancel a visa on character grounds.

This was the outcome of Le v Minister for Immigration and Border Protection [2015] FCA 1473.

Ms Le came to Australia lawfully in 1984 as a refugee.  By 1994 she held a resident return visa (subclass 155) which was cancelled on character grounds based on serious drug offences.

Logan J said this about Ms Le’s status :

What I derive from this is that, in 1984, upon her acceptance as a refugee in terms of the Refugees Convention and the corresponding grant to her of lawful residence in Australia, Mrs Le acquired under international law an accrued right of non-refoulement to Vietnam, subject to the qualifications found in Article 33 of the Refugees Convention for as long as she remained a refugee and, in turn, Australia came under a corresponding international obligation, subject again to the qualifications noted, not to refoule her to that country. It was not necessary for her to claim that right in order to engage that obligation. She enjoyed it as of right as an incident of her acceptance by Australia as such a refugee. 

Then in paragraphs 62 to 64 Logan J went to determine that once a person has been determined to be a refugee in the past, the issue of Australia’s non-refoulement obligations is enlived and must therefore be considered by the Minister. It must be considered in 2 ways, firstly whether her refugree status still exists and if it does what non-refoulement obligations does Australia have :


62.For reasons already given, non-refoulement is an accrued right of a person accepted as a refugee and granted lawful residence accordingly. Mrs Le was such a person in 1984. The status of refugee is not necessarily an indefinitely continuing one. As mentioned, it can be lost in a number of ways well-recognised in international law. A voluntary act such as a return to the country of nationality in respect it was accepted that there was once a well-founded fear of persecution may (not must) be regarded as indicative that the fear of persecution is no longer held or that there is no longer a need of protection: Goodwin-Gill and McAdam at p 635 et seq.  I note, as did the Minister, that Mrs Le chose briefly to return to Vietnam in the mid-1990s.

            63.Even if Mrs Le were to be regarded as still having the status of a refugee, the obligation of non-refoulement found in Article 33 is not unqualified. A question would arise as to whether, in terms of that qualification,  the convictions of Mrs Le for various drug offences were in respect of “a particularly serious crime” which “constitutes a danger to the community” of Australia. That question is not answered by her having a “substantial criminal record” as defined by s 501(7) of the Act. Further, the centrality to the Refugees Convention of non-refoulement in respect of a refugee and the juxtapositioning in Article 33 of “danger to the security of the country” with “a particularly serious crime” which “constitutes a danger to the community” and the use of the adverb, “particularly” in the qualification found in Article 33 rather suggests that the crime concerned must be a grave one indeed.

            64.None of this need though be the subject of further consideration in the present case. That is because the Minister, as para 48 of his reasons evidences, has proceeded on the legally erroneous basis that it was unnecessary for him to consider them, because Mrs Le had made no claims in this regard in the submission made on her behalf to him. She did not have to. She already had the benefit of a prior determination by Australia that she was a refugee. Of this the Minister was aware and found as a fact. The relevant consideration was whether she still enjoyed that status and, even if so, whether by cancelling her visa and rendering her an unlawful non-citizen subject to the duty of removal a non-refoulement obligation would be violated or whether her case fell within a qualification to that obligation. A corollary of the potentially adverse consequences which might follow for Mrs Le from a decision by the Minister which took into account these matters was that she was entitled to an opportunity to be heard in respect of them prior to the Minister’s making his decision. He did not include this subject in the opportunity which he afforded her because, erroneously, he did not consider that he had to.

            65.It is not for me, in the determination of this judicial review application, to make findings of fact in relation to the merits of this relevant consideration including whether Mrs Le remains a refugee. The Act consigns that responsibility to the Minister.

Barbara Davidson