ABSTRACT
The appellant was an Indian national who arrived in Australia in 1996, and had his visa cancelled in 2019 on the basis that he did not pass the character test in section 501 of the Migration Act due to his extensive criminal record. Kwatra applied to have the original decision cancelling his visa revoked, but his application was denied by a delegate of the Minister and on appeal to the Administrative Appeals Tribunal. He appealed to the Federal Court of Australia arguing, inter alia, that the Tribunal failed to carry out its statutory task of review with respect to assessing if the impediments he might face upon his return to India constituted 'another reason' for revoking cancellation pursuant to section 501CA. In particular, Kwatra raised concerns before the Tribunal about returning to India due to the COVID-19 pandemic, noting that he had various health concerns, and would not have job prospects or access to social welfare and therefore would not be able to afford medical assistance. Burley J held that Kwatra had made a sufficiently dear claim concerning dangers to his health arising from the COVID-19 pandemic, but that nowhere in its substantive reasons did the Tribunal refer to the COVID-19 pandemic, its effect on the health-care system in India, or its likely or possible effect on Kwatra should he be deported to India during the pandemic. This failure to address the issue in its reasons left open the inference that the Tribunal did not consider Kwatra's claim to fear harm due to COVID-19 in India as it was required to do. The failure to consider this claim was material to the Tribunal's decision not to revoke Kwatra's visa cancellation. Kwatra had made a material claim concerning Australia's non-refoulement obligations and, had the identified risk of harm upon his return to India been considered, it could, realistically, when weighed with other factors, have provided 'another reason' for revoking the visa cancellation within the requirements of the legislative framework. Burley J was satisfied that a different decision might have been made had there been active intellectual engagement with the claim. This ground of review was upheld. The decision of the Tribunal was quashed and the matter was sent back to the Tribunal, differently constituted, to redetermine according to law.