The Morrison government has been warned it must consider the impact on Australia’s national interest of sending refugees back to their country of persecution after losing its bid to deport a convicted child sex offender.
Last year the then-acting immigration minister, Alan Tudge, refused an Afghan man a safe haven enterprise visa on character grounds, despite acknowledging the risk he could be killed by the Taliban in Afghanistan.
But the federal court has set aside Tudge’s decision, ruling he failed to take into account the full ramifications of Australia breaching its international nonrefoulement obligations.
As immigration minister seeking expanded powers to deport visa holders who committed crimes, Scott Morrison told parliament in 2014 that Australia was not seeking to avoid international law and that refugees would “not be removed in breach of any nonrefoulement obligations”.
According to Justice John Griffiths’ decision, handed down on 23 December, Tudge was aware of Australia’s obligation but believed the issue was not relevant to the question of national interest.
“The acting minister undoubtedly recognised that, in this particular case, the exercise of his power under … would put Australia in breach of its international non-refoulement obligations,” the judge said.
“[Tudge] considered that this was outweighed by other considerations which favoured the decision to refuse to grant the applicant the visa.”
The visa applicant, who has spent more than five years in immigration detention, failed the character test after being convicted in 2014 of two counts of assault with acts of indecency and five counts of indecent assault of a person under 16.
Justice Griffiths noted the case was “not the first” in which a minister has cancelled or refused a visa with the consequence the person “would be removed from Australia to their country of origin” in breach of international law.
He warned it was “important to bear in mind that Australia’s nonrefoulement obligations are owed not to the visa holder or visa applicant, but to the international community”.
Tudge had argued that it was merely “speculation” that breaching international law would harm Australia’s national interest.
But Justice Griffiths said the “very serious consequence” of breaching Australia’s obligations “had to be confronted” more directly in circumstances where there was an “accepted risk” the man could be killed.
“The minister erroneously confined his assessment of the national interest by simply focusing upon the seriousness of the applicant’s criminal conduct, the sentence he received, the risk of him reoffending and the harm to the Australian community if such a risk eventuated.
“In my view, the acting minister fell into jurisdictional error by assessing the question of the national interest on an erroneously narrow basis.”
Despite the Australian government’s loss in the case, the judge acknowledged the court “cannot generally review the merits” of an assessment of the national interest, meaning immigration laws properly applied will still allow refugees to be sent back to their country of persecution.
A home affairs spokesperson said the department was considering the decision but as the appeal timeframe had not ended it was “inappropriate to comment further”.
In September Tudge, now the education minister, was the subject of a scathing federal court decision finding he unlawfully deprived an asylum seeker of his liberty.
The asylum seeker is suing the federal government for false imprisonment after being kept behind bars for five days despite being awarded a protection visa.
Tudge has appealed against that decision, in which Justice Geoffrey Flick said he had placed himself above the law and “engaged in conduct which can only be described as criminal”.
In October, Tudge said these “were comments by a particular judge, which I strongly reject”.
Guardian Australia contacted Tudge and the immigration minister, Alex Hawke, for comment.
