The International Criminal Police Organization, commonly known as Interpol, issues Red Notices on behalf of requesting member states in order for other member states to locate and provisionally arrest individuals for the purposes of extradition, surrender or other lawful purposes. These notices provide critical information on the individual, their identity and the offences alleged against them by the requesting state. While not an international arrest warrant, Australia, like many countries, takes Interpol Red Notices seriously. These notices can impact several aspects of an individual’s interaction with the Australian immigration system.
Visa and Permanent Residency Applications and Cancellation
As part of the application process for Visas or Permanent Residency, the Department of Home Affairs conducts thorough background checks on applicants. An active Red Notice can raise concerns about the applicant’s character, potentially leading to refusal of the application.
The Minister of Home Affairs has the power to refuse or cancel visas on character grounds under section 501 of the Migration Act 1958 (Cth). Specifically, under section 501(6)(h), a person will not pass the character test if an Interpol notice in relation to the person is in force, and it is reasonable to infer from that notice that the person would present a risk to the Australian community or a segment of that community.
There have been cases that demonstrate how Australian courts handle the Minister’s refusal of Visa applications based on Red Notices.
In FUD18 v Minister for Home Affairs [2021] FCAFC 132, the applicant, Mr. H, was subject to an arrest warrant and an Interpol Red Notice based on alleged offences which took place in Vietnam. He applied for Australian permanent residency. The Minister notified his intention to refuse Mr. H’s visa on the grounds that he was a community risk based on the Interpol notice. In the interim, Mr. H made submissions to Interpol to remove the Red Notice. He argued that these allegations were politically motivated, which is in breach of Interpol’s rules. However, Interpol found insufficient evidence to support his claim and upheld the Red Notice.
Mr. H appealed to the Full Court of the Federal Court seeking an order restraining the Minister from refusing his Australian Permanent Residency application. The Court dismissed Mr. H’s application due to the anticipatory nature of the relief he sought. However, Judge Wigney noted that Mr. H’s arguments had considerable merit, suggesting that, without further evidence, it would be unreasonable to infer from the Interpol notice that Mr. H posed a risk to the Australian community. This suggests it would be unreasonable for the Minister to refuse Mr. H’s Australian Permanent Residency application based on the Interpol Red Notice, considering the evidence alleged against him.
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, Mr. Z, a citizen of the People’s Republic of China, applied for a protection visa in Australia, alleging persecution based his on religious beliefs. The Red Notice alleged that Mr. Z defrauded banks, with an arrest warrant issued in China. Mr. Z denied the charges, further claiming they stemmed from a business and political dispute. Despite Mr. Z’s denials and not being convicted in China, the Minister refused his Visa application, citing concerns about potential financial crimes in Australia and community expectations regarding unresolved serious charges. On appeal, the Full Court of the Federal Court found in favour of Mr. Z. In particular, Judge Wigney reasoned that the Minister’s visa refusal for Mr. Z was legally unreasonable due to doubts about the credibility of the Red Notice and human rights concerns about China’s justice system, including the risk of torture and unfair criminal trial.
Citizenship Applications
To become an Australian citizen, applicants must demonstrate they have good character, which is a requirement of section 21(2)(h) of the Australian Citizenship Act 2007 (Cth). The Minister may, by writing, cancel an approval of citizenship if the person is not of good character.
Interpol Red Notices can complicate citizenship applications, leading to delays or refusals.
For example, in Hao Zhang and Minister for Immigration and Border Protection [2015] AATA 176, the applicant, a Chinese citizen who became an Australian permanent resident, applied for citizenship in 2003 but was refused due to character concerns based on an Interpol Red Notice alleging fraud in China. Despite no convictions and his denial of the allegations, the Administrative Appeals Tribunal upheld the refusal in 2014. The Tribunal cited the ongoing validity of the Interpol Red Notice and the seriousness of the allegations, noting the applicant’s failure to demonstrate good character or significant engagement in the Australian community.
However, the existence of a Red Notice does not mean a citizenship application will be refused. In Wang and Minister for Home Affairs (Citizenship) [2019] AATA 665, the applicant, a Chinese citizen who later became a permanent resident, faced legal challenges from Chinese authorities for leaving China without approval and allegedly receiving bribes during his tenure at a regional government department. Chinese authorities issued an Interpol Red Notice in 2016. Despite these allegations, the applicant applied for Australian citizenship in 2017, which was refused in 2018. The Administrative Appeals Tribunal overturned the refusal in 2018, considering the Red Notice as potentially politically motivated and lacking specific evidence connecting the applicant to the offence. The Tribunal emphasised the applicant’s demonstrated good character through community integration, family ties in Australia, and participation in local activities, dismissing the credibility of the allegations against him. The Tribunal decided that the Applicant meets the “good character” test and set aside the Minister’s decision to refuse citizenship application.
Conclusion
Interpol Red Notices have significant implications for individuals seeking permanent residency, citizenship, or visas in Australia. The presence of a Red Notice can trigger additional scrutiny, delays, and potential refusals. Navigating these challenges requires a deep understanding of both international and Australian legal frameworks. Legal professionals play a critical role in challenging Red Notices and mitigating their impact to protect their clients’ immigration prospects.
For individuals facing this complex situation, seeking timely legal advice and representation is essential to safeguarding their future in Australia.
