Goundar v Minister for Immigration and Border Protection

The case of Goundar v Minister for Immigration and Border Protection involved the applicant, an individual whose visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to a criminal record, challenging the decision of the Minister not to revoke the cancellation. The applicant had made representations to the Minister, arguing that he faced a risk of retribution from the victim’s family in Fiji, which was not adequately protected by a potential application for a protection visa. The applicant contended that the Minister had made an error of law or failed to consider a relevant factor in deciding not to revoke the visa cancellation.

The legal issues before the court were whether the Minister had erred in law by not revoking the visa cancellation and whether the Minister had failed to consider a relevant factor that the applicant had raised. Specifically, the court had to determine if the Minister had correctly assessed the risk of non-Protection Visa (non-PV) harm and if this risk constituted a mandatory consideration under section 501CA(4) of the Act.

The court found that the Minister had indeed made an error in his decision-making process. The Minister had limited his consideration to harm that implicated Australia's international non-refoulement obligations, disregarding the broader risk of harm that the applicant had presented. This error was compounded by the Minister's failure to address the applicant’s representation about the risk of retribution, which was not tied to Australia’s legal obligations but was a factual risk to the applicant's safety. The court concluded that the Minister had not adequately considered the risk of non-PV harm, which was a mandatory consideration under the Act as it had been raised by the applicant.

The decision of the Minister was quashed, and the matter was remitted for reconsideration in accordance with the law. The Minister was also ordered to pay the applicant’s costs of the application.