FEDERAL COURT OF AUSTRALIA
AFD21 v Minister for Home Affairs [2021] FCAFC 167
ORDERS
VID 71 of 2021 BETWEEN: AFD21
Appellant
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Details
- Case
- [2021] FCAFC 167
- Decision Date
CaseChat Overview and Summary
AFD21, a Burundian citizen, appealed against the dismissal of his application for the revocation of a mandatory visa cancellation decision by the Minister for Home Affairs. The appellant’s visa was cancelled on character grounds and due to his imprisonment. The appellant argued that he would be killed if returned to Burundi, a claim the Minister failed to adequately consider. The Federal Court of Australia was tasked with determining whether the Minister erred in not engaging with the appellant’s representations and Australia's non-refoulement obligations.
The legal issues before the court involved whether the Minister made a jurisdictional error by not properly considering the appellant's representation that he would be killed if returned to Burundi and whether the claim regarding Australia's non-refoulement obligations was sufficiently raised. The court had to assess if the Minister's decision-making process adhered to legal standards, particularly in relation to the appellant's country information and the potential for indefinite detention.
The court found that the Minister did indeed make a jurisdictional error. The Minister failed to adequately engage with the appellant’s representations about the risk of being killed if returned to Burundi. Additionally, the court determined that the appellant's claim about Australia's non-refoulement obligations was not sufficiently raised, leading to an incomplete consideration of relevant international law. Consequently, the Minister's decision was quashed, and a writ of mandamus was issued requiring the Minister to reconsider the appellant's request for revocation according to law.
The court ordered that the Minister's decision refusing to revoke the visa cancellation be quashed. A writ of mandamus was issued, mandating the Minister to reconsider the appellant's request for revocation in accordance with the law. The appellant was awarded costs for both the application and the appeal. This decision underscores the importance of thorough and lawful consideration in visa revocation decisions, particularly when significant personal safety claims are involved.
The legal issues before the court involved whether the Minister made a jurisdictional error by not properly considering the appellant's representation that he would be killed if returned to Burundi and whether the claim regarding Australia's non-refoulement obligations was sufficiently raised. The court had to assess if the Minister's decision-making process adhered to legal standards, particularly in relation to the appellant's country information and the potential for indefinite detention.
The court found that the Minister did indeed make a jurisdictional error. The Minister failed to adequately engage with the appellant’s representations about the risk of being killed if returned to Burundi. Additionally, the court determined that the appellant's claim about Australia's non-refoulement obligations was not sufficiently raised, leading to an incomplete consideration of relevant international law. Consequently, the Minister's decision was quashed, and a writ of mandamus was issued requiring the Minister to reconsider the appellant's request for revocation according to law.
The court ordered that the Minister's decision refusing to revoke the visa cancellation be quashed. A writ of mandamus was issued, mandating the Minister to reconsider the appellant's request for revocation in accordance with the law. The appellant was awarded costs for both the application and the appeal. This decision underscores the importance of thorough and lawful consideration in visa revocation decisions, particularly when significant personal safety claims are involved.
Orders
Orders of the court
1. The appeal be allowed.
2. The orders made by the primary judge on 22 January 2021 be set aside, and in their place, the following orders be made:
(a) The decision made by the respondent on 1 May 2018 under section 501CA(4) of the Migration Act 1958 (Cth) not to revoke an earlier decision of the respondent’s delegate under section 501(3A) to cancel the applicant’s Class AH Subclass 101 Child (permanent) visa (the delegate’s decision) be quashed.
(b) A writ of mandamus issue requiring the respondent to determine the applicant’s request for the revocation of the delegate’s earlier decision according to law.
(c) The respondent pay the applicant’s costs of the application.
3. The respondent pay the appellant’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The appellant is a citizen of Burundi, and was granted a Class AH Subclass 101 Child (permanent) visa on 8 December 2010 when he was 17 years of age. Subsequently, on 30 April 2015, the appellant’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth). The appellant appeals from a judgment of a judge of this Court, dismissing his application for judicial review of a decision of the Minister declining to revoke the cancellation of his visa under s 501CA(4) of that Act. Before turning to the primary judge’s reasons, and the grounds of appeal, we will set out the background to the matter.Background The cancellation of the appellant’s visa under s 501(3A) was mandatory, because a delegate of the Minister was satisfied that the appellant did not pass the character test under s 501(6)(a) and (7)(c) of the Act, and because the appellant was then serving a sentence of imprisonment on a full time basis. Material to the delegate’s decision was that on 6 May 2014 the appellant pleaded guilty to the offence of “unlawful act with intent to harm (endangering life, health or safety of any person)”, for which he was sentenced by the District Court of Western Australia to a term of imprisonment of 12 months, and was eligible for parole after 6 months. The appellant was 19 years of age at the time of this offending. The appellant’s parole was cancelled on 18 February 2015 for breach of a parole condition relating to the consumption of alcohol. At the time of the cancellation of his visa, the appellant also had convictions for a number of other offences for which he was fined, which it is unnecessary for present purposes to recount. Subsequent to the cancellation of his visa, on 9 June 2017 the appellant was convicted of further offences, namely, taking part in a riot, possessing a weapon, threatening to cause harm, causing harm to a Commonwealth public official, and obstructing, hindering, intimidating, or resisting a Commonwealth public official. He was sentenced to concurrent terms of imprisonment for those offences, the longest of which was 12 months. The Department notified the appellant of the cancellation of his visa by letter dated 29 May 2015. By that letter, the appellant was invited to make representations to the Minister about revocation of the mandatory decision to cancel his visa: see s 501CA(3)(b). In that respect, the letter included the following information –If you decide to make representations about the revocation of the decision to cancel your visa, you can write to us using the attached Revocation Request Form. Under s499 of the Act which permits the Minister to issue written directions about the exercise of powers under the Act, the Minister has issued Direction 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which identifies issues that are relevant to the revocation consideration. A copy of Direction 65 is enclosed for your information. You should address each paragraph in PART C of the Direction that is relevant to your circumstances.Please note that if the decision-maker who makes the decision regarding whether or not to revoke the decision to cancel your visa is a delegate of the Minister, they must follow Direction 65. If, however, the Minister makes a revocation decision personally, he or she is not bound by Direction 65, although Direction 65 provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the decision to cancel your visa.(Emphasis added.)
Evidence
Evidence Before The Court
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Decision
Reasons for decision
For the reasons we have stated, we would allow the appeal. In this circumstance it is unnecessary to consider the other grounds raised by the appellant by his amended notice of appeal: see Boensch v Pascoe (2019) 375 ALR 15 at [7]-[8] (Kiefel CJ, Gageler and Keane JJ). We note, however, that, as to ground 3, the Minister’s failure to engage with any of the country information that the appellant submitted has the consequence that what was said by the Minister at [30] of his statement of reasons about the appellant settling into Burundi society apparently falls away. We also note that, as to ground 4, it may be that no question of the prospect of indefinite detention has yet arisen, bearing in mind that the Minister has not yet entered upon a consideration of Australia’s non-refoulement obligations in respect of the appellant.Conclusions As indicated already, the appeal should be allowed. The orders of the primary judge should be set aside, and in lieu it should be ordered that a writ of certiorari issue quashing the Minister’s decision refusing to revoke the original decision to cancel the appellant’s visa, and a writ of mandamus should issue requiring the Minister to consider according to law the question whether the original decision should be revoked. The appellant should have his costs below, and the costs of the appeal.
Ratio Decidendi
Legal Principle Established
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