FEDERAL COURT OF AUSTRALIA
AEM20 v Minister for Home Affairs [2020] FCA 623
File number: NSD 22 of 2020 Judge: KATZMANN J Date of judgment: 12 May 2020 Catchwords: MIGRATION — review of decision made by Minister personally to refuse to grant a Safe Haven Enterprise visa under s 501(6)(ba) of Migration Act 1958 (Cth) — where applicant volunteered information to Department of assistance provided to people smuggler in Indonesia in exchange for discounted passage to Australia — where Departmental reviewing officer determined he satisfied criteria for protection visa and Australian Federal Police investigated his conduct in Indonesia and he was not prosecuted — where Minister said he was satisfied applicant did not pass the character test because he reasonably suspected he had been involved in conduct constituting an offence under one or more of ss 233A to 234A (people smuggling) although applicant had not been convicted or charged with any such offence — where impressive evidence of good character presented to Minister — whether Minister could lawfully form a reasonable suspicion that applicant had been involved in conduct constituting an offence under ss 233A to 234A if the conduct did not constitute an offence at time of suspected involvement — whether Minister committed jurisdictional error by failing to identify in which of those seven offences he suspected the applicant to have been involved — whether Minister failed to consider applicant’s additional protection claims according to law — where Minister determined that applicant represented an unacceptable risk to the Australian community, whether Minister’s conclusion that in order to meet Australia’s non‑refoulement obligations he could exercise his personal non‑compellable power to grant applicant a visa in the public interest under s 195A was not properly considered or legally unreasonable — whether Minister’s findings that risk of applicant engaging in other serious conduct could not be ruled out and that he represented an unacceptable risk to the Australian community were legally unreasonable — whether Minister’s decision beyond power in any event as not open to him to refuse to grant a protection visa under s 501(1) since commencement of Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). Legislation: Acts Interpretation Act 1901 (Cth) s 25D
Criminal Code Act 1995 (Cth) s 9.2
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 501(1), 501(6)(ba)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) Sch 1, item 10
Explanatory Memorandum, Anti-People Smuggling and Other Measures Bill 2010 (Cth)
Cases cited: Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Attorney-General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557
Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117
AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317
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Details
- Case
- [2020] FCA 623
- Decision Date
CaseChat Overview and Summary
In the case of AEM20 v Minister for Home Affairs, the applicant, who was detained in Australia, challenged the Minister’s decision to refuse to grant him a Safe Haven Enterprise visa under section 501(6)(ba) of the Migration Act 1958 (Cth). The applicant had volunteered information about providing assistance to a people smuggler in Indonesia in exchange for a discounted passage to Australia. Despite the applicant satisfying the criteria for a protection visa and not being prosecuted for his conduct in Indonesia, the Minister concluded that the applicant did not pass the character test due to a reasonable suspicion of involvement in people smuggling offences. The applicant argued that the Minister erred in relying on certain sections of the Migration Act, failed to consider additional protection claims, and acted legally unreasonably in concluding that the applicant represented an unacceptable risk to the Australian community.
The court had to determine whether the Minister could lawfully form a reasonable suspicion of the applicant's involvement in people smuggling offences under sections 233A to 234A of the Migration Act, despite those offences not existing at the time of the alleged conduct. The court also had to assess if the Minister committed a jurisdictional error by not specifying which of the seven offences he suspected the applicant of being involved in, and whether the Minister failed to consider the applicant's additional protection claims according to law. Additionally, the court had to examine whether the Minister's conclusion that he could exercise his personal non-compellable power to grant the applicant a visa in the public interest under section 195A was legally sound, and whether the Minister's findings about the applicant's risk to the Australian community were legally reasonable. The court also considered whether the Minister's decision was beyond his power since the commencement of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth).
The Federal Court found in favour of the applicant. The court held that the Minister erred in relying on sections 233A to 234A of the Migration Act because the applicant's conduct did not constitute an offence at the time it occurred. The court also found that the Minister failed to consider the applicant's additional protection claims and did not properly evaluate the risk of the applicant engaging in other serious conduct. The court quashed the Minister’s decision, issued a writ of prohibition to prevent its enforcement, and ordered the applicant's release from detention. The Minister was also ordered to pay the applicant's costs.
The court's decision underscores the importance of the Minister correctly identifying the legal grounds for decision-making and ensuring that all relevant factors are considered in exercising discretionary powers under the Migration Act.
The court had to determine whether the Minister could lawfully form a reasonable suspicion of the applicant's involvement in people smuggling offences under sections 233A to 234A of the Migration Act, despite those offences not existing at the time of the alleged conduct. The court also had to assess if the Minister committed a jurisdictional error by not specifying which of the seven offences he suspected the applicant of being involved in, and whether the Minister failed to consider the applicant's additional protection claims according to law. Additionally, the court had to examine whether the Minister's conclusion that he could exercise his personal non-compellable power to grant the applicant a visa in the public interest under section 195A was legally sound, and whether the Minister's findings about the applicant's risk to the Australian community were legally reasonable. The court also considered whether the Minister's decision was beyond his power since the commencement of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth).
The Federal Court found in favour of the applicant. The court held that the Minister erred in relying on sections 233A to 234A of the Migration Act because the applicant's conduct did not constitute an offence at the time it occurred. The court also found that the Minister failed to consider the applicant's additional protection claims and did not properly evaluate the risk of the applicant engaging in other serious conduct. The court quashed the Minister’s decision, issued a writ of prohibition to prevent its enforcement, and ordered the applicant's release from detention. The Minister was also ordered to pay the applicant's costs.
The court's decision underscores the importance of the Minister correctly identifying the legal grounds for decision-making and ensuring that all relevant factors are considered in exercising discretionary powers under the Migration Act.
Orders
Orders of the court
1. A writ of certiorari issue, quashing the decision made personally by the respondent on 13 November 2019 to refuse to grant the applicant a Safe Haven Enterprise (Class XE) visa under s 501(1) of the Migration Act 1958 (Cth).
2. A writ of prohibition issue, prohibiting the respondent and his delegates, servants and agents from acting upon, or giving effect to, the decision.
3. The applicant be released forthwith from immigration detention.
4. The respondent pay the applicant’s costs.
5. The respondent file an affidavit by 1pm AEST today confirming compliance with order 3.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Minister concluded that, despite the factors in the applicant’s favour, the discretion should be exercised to refuse to grant his application for a SHEV since the applicant “represents an unacceptable risk of harm to the Australian community” and “the protection of the Australian community outweighed [the] countervailing considerations”.The challenge to the Minister’s decision. By a further amended application the applicant raises the following grounds:1.The Minister erred in relying on ss.“233A to 234A” of the Migration Act in finding that the applicant did not pass the character test in terms of s 501(6)(ba) of the Act.Particulars(a)The applicant’s conduct was not an offence under the Migration Act at the time it is alleged to have occurred. Neither s 233A, nor s. 233B, nor s. 233C as they existed in 2009 when the applicant’s conduct in breach of those provisions was said to have occurred said anything about “people smuggling”.(b)Section 234A did not exist in 2009, when the applicant’s conduct in breach of those provisions was said to have occurred.2,In the event that the Minister did not err as pleaded in ground 1 above, the Minister erred in the exercise of his jurisdiction in that he failed to make findings as to the applicant’s specific conduct said to come within s 501(6)(ba)(i) of the Migration Act.3.The Minister failed to complete the exercise of his jurisdiction in that he failed to evaluate what he described as “additional protection claims” described at [44] to [46] inclusive of his reasons for decision and was thus unable to take into account such evaluation in his consideration of whether to exercise his discretion pursuant to s. 501(1) of the Migration Act.4.The Minister failed at [49] of his reasons for decision, to engage in an active intellectual process, and acted in a manner that was legally unreasonable.Particulars(a)The Minister could not have reasonably reached a conclusion that he may decide to grant the applicant a visa pursuant to s 195A of the Migration Act in view of reasons that he gave for refusing the applicant’s application for a Protection Visa.(b)That being so, the Minister failed to address the inevitable consequence of his refusal to grant the applicant’s Protection Visa, that being that the applicant would have to be refouled as soon as reasonably practicable pursuant to ss 197C and 198 of the Migration Act because there was no reasonable basis on which the grant of any other visa could occur having regard to reasons that he gave for refusing the applicant’s application for a Protection Visa.5. The Minister’s decision was legally unreasonable.Particulars(a) [deleted];(b)The finding at [64] that the Minister could not rule out the possibility of the applicant engaging in “other serious conduct” and the conclusion therefrom at [67] that the applicant represents an “unacceptable risk of harm to the Australian community” lacked a rational or evidential basis in that:(i)There was no evidence or suggestion, or suspicion that the applicant had exhibited any inclination to engage in such conduct;(ii) There was evidence, summarised at [28]–[30] inclusive of the Minister’s reasons, that the applicant’s conduct in Australia had been exemplary.(iii) The conduct that the applicant admitted being engaged in in Indonesia was for the purpose of securing his own safety.6.The Minister acted beyond his power by purporting to refuse the applicant’s application for a Protection Visa pursuant to s 501(1) of the Migration Act Particulars(i)The applicant’s application for a Protection Visa was lodged after the coming into force of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (No. 135 of 2014) (the 2014 amendments)(ii)Since the coming into force of the 2014 amendments, s 36(1C) is a specific criterion applicable only to an applicant for a protection visa and precludes the Minister using s 501(1) as a basis to refuse to grant a protection visa. The statutory framework
Ratio Decidendi
Legal Principle Established
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