Akol v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2024] FCA 903

FEDERAL COURT OF AUSTRALIA

Akol v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 903  

Appeal from:   Decision of Administrative Appeals Tribunal delivered by Senior Member Hon J Rau SC on 22 November 2023
File number(s): NSD 114 of 2024
Judgment of: WIGNEY J
Date of judgment: 14 August 2024
Catchwords:

MIGRATION – application for review of Tribunal decision not to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Migration Act – where the Tribunal found that “another reason” for revocation was that the applicant would face hardship in South Sudan as a result of the cancellation of his visa – where the applicant alleged that the Tribunal’s decision not to revoke the cancellation was irrational or unreasonable given that finding – Tribunal’s reasons to be read fairly and as a whole – ground not established

MIGRATION – where the applicant argued that Tribunal failed to decide what was in the best interests of children – whether the Tribunal failed to exercise its jurisdiction – no requirement for the Tribunal to make a categorical, definite or unqualified finding – Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 applied – ground not established

MIGRATION – where the applicant argued that the Tribunal failed to have regard to a mandatory consideration – where the applicant submitted that the Tribunal considered evidence of the applicant’s sister as a family member and not as a victim – Tribunal not required to take into account materials repetitiously – ground not established – application dismissed

Legislation: Migration Act 1958 (Cth) ss 476A, 499(1), 499(2A), 501(3A), 501(6), 501(7), 501CA(4)
Cases cited:

Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125; (2022) 295 FCR 315

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582

Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203

XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 59
Date of hearing: 3 July 2024
Counsel for the Applicant Mr R Chia
Solicitor for the Applicant Nikjoo Lawyers
Counsel for the First Respondent Mr N Swan
Solicitor for the First Respondent MinterEllison

ORDERS

NSD 114 of 2024
BETWEEN:

WOUL ABDERLRAHMAN AKOL

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

WIGNEY J

DATE OF ORDER:

14 AUGUST 2024

THE COURT…

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AGLC
Akol v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 903
Case
[2024] FCA 903
Decision Date

CaseChat Overview and Summary

The case of Akol v Minister for Immigration, Citizenship and Multicultural Affairs involved an application for review of a Tribunal decision that declined to revoke the cancellation of the applicant's visa under section 501CA(4) of the Migration Act. The applicant argued that the Tribunal's decision not to revoke the cancellation of his visa was irrational or unreasonable given the Tribunal's finding that he would face hardship in South Sudan if returned there. The applicant also claimed that the Tribunal failed to decide what was in the best interests of the children, did not consider the evidence of his sister as a victim, and did not have regard to a mandatory consideration. The Federal Court was required to determine whether the Tribunal's decision was legally sound and whether it was based on relevant considerations.

The court found that the Tribunal's decision, although containing findings that Mr Akol would face hardship in South Sudan, was not irrational or unreasonable. The court held that the Tribunal's reasons were to be read fairly and as a whole, and the Tribunal was not required to take into account materials repetitively. The court also found that the Tribunal did not fail to exercise its jurisdiction by not making a categorical, definite, or unqualified finding regarding the best interests of the children, as per the decision in Uelese v Minister for Immigration and Border Protection. Additionally, the court held that the Tribunal was not required to consider the evidence of the applicant’s sister as a victim, as it had already considered her evidence as a family member. The court dismissed the application, holding that none of the grounds of review were established. The applicant's application for review was dismissed, and the court ordered that the applicant pay the respondent's costs as agreed or assessed.

Orders

Orders of the court

1. The time for the applicant to file his Amended Application for review of a migration decision be extended up to and including 13 June 2024.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is unnecessary at this point to consider the terms of the Direction in any detail. It suffices to note that, among other thing, it provides a detailed list and discussion of the relevant considerations that a decision-maker must take into account in deciding, relevantly, whether to revoke a visa cancellation. The considerations are generally divided between “primary” and “other” considerations. The considerations which are of particular relevance to Mr Akol’s grounds of review are: the legal consequences of the decision (cl 9(1)(a) and cl 9.1 of the Direction), which is of some relevance to the first ground of review; the best interests of minor children in Australia (cl 8(4) and cl 8.4 of the Direction), which is a primary consideration and is of particular relevance to Mr Akol’s second ground of review; and impact on victims (cl 9(1)(c) and cl 9.3 of the Direction), which is of relevance to the third ground of review. The Tribunal’s decision The administrative and procedural steps which preceded the Tribunal proceedings were referred to earlier and do not need to be repeated. It was common ground before the Tribunal that Mr Akol did not pass the character test and that the only question for determination by the Tribunal was whether there was “another reason” to revoke the cancellation of Mr Akol’s visa for the purposes of s 501CA(4) of the Act. Mr Akol was represented by a solicitor in the Tribunal and filed a Statement of Facts, Issues and Contentions (SFIC) which outlined his case before the Tribunal. The contents of Mr Akol’s SFIC is of some relevance to the third ground of review. The Tribunal conducted a hearing on 14 November 2023. Mr Akol tendered a number of witness statements and other documents. One of the witness statements was a statement by Mr Akol’s sister, Ms Agok Akol. The applicant and Agok gave oral evidence before the Tribunal, albeit by telephone (in the applicant’s case) and video link (in the case of Agok). The statement and evidence of Agok is of some relevance to the third ground of review. On 22 November 2023, the Tribunal affirmed the delegate’s decision to decline to revoke the cancellation and published its Reasons for Decision (R). It is unnecessary to discuss the Reasons in detail. The parts of the Reasons that are relevant to the grounds of review are discussed in the context of the consideration of those grounds. The Tribunal discussed the relevant background facts at R[13]-[56]. The background facts included the nature and circumstances of the offences committed by Mr Akol which resulted in him failing the character test. It is relevant to note that one of the offences involved the assault of Agok (R[22]-[29]) and another involved the breach of an apprehended domestic violence order which had been made in order to protect Agok: R[31]-[32]. The Tribunal discussed the Direction in general terms at R[59]-[66] and addressed the primary considerations (at R[68]-[140]) and other considerations (at R[141]-[189]) at considerable length. In respect of each of the relevant considerations, the Tribunal assessed the extent to which the consideration weighed for or against revocation of the cancellation of Mr Akol’s visa.

Ratio Decidendi

Legal Principle Established

In arriving at its decision, the Tribunal considered that it was necessary to “weigh up all of the primary and other considerations”: R[190]. Having done so (at R[191]-[202]), the Tribunal concluded (at R[203]) that the fact that Mr Akol represented “an unacceptable risk of harm to the Australian community”, and the need to protect the Australian community, outweighed “his interests, the interest of his family, his nieces and nephews, and the “other countervailing considerations”, including the many hardships that the Tribunal had identified. The Tribunal accordingly found that there was not “another reason” to revoke the cancellation decision: R[204]. Was the Tribunal’s decision irrational or did it proceed on a misconstruction of the Act? Mr Akol’s first ground of review focussed on a finding made by the Tribunal in respect of the consideration relating to the legal effects of the decision. The Tribunal considered, under the rubric of the legal consequences of the decision, claims made by Mr Akol that may have given rise to non-refoulment obligations on the part of Australia. The Tribunal decided, in accordance with Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [36]-[40], that it was unnecessary to determine whether non-refoulment obligations were owed in respect of Mr Akol because he was able to apply for a protection visa: R[161]. Mr Akol does not challenge that finding. The Tribunal did, however, go on to consider Mr Akol’s claims that he would suffer harm in South Sudan “outside the concept of non-refoulment and the international obligations framework”: R[170]. The Tribunal found, in that context, that South Sudan was in a state of civil and political unrest, that there was a high risk of violence and starvation, that torture and killings were commonplace and that every citizen was facing serious challenges to their health and safety: R[171]. The Tribunal then said (at R[172]-[174]):I am satisfied that regardless of whether the Applicant’s claims are such as to engage non-refoulement obligations, he would face great hardship were he to return to South Sudan.I accept that these factors, taken as a whole, constitute another reason why the Applicant’s visa revocation should be cancelled.This other consideration weighs heavily in favour of revocation. Mr Akol’s argument hinges on the Tribunal’s statement (at R[173]) that the state of affairs in South Sudan and fact that Mr Akol would suffer harm if he were to returned there “constitute another reason why [Mr Akol’s] visa revocation should be cancelled”. Mr Akol emphasised that this finding employed the very expression – “another reason” – which appears in s 501CA(4)(b)(ii). He submitted that the Tribunal’s finding that those factors constituted “another reason” to revoke the cancellation of his visa was “logically incompatible” with the Tribunal’s ultimate finding (at R[204]) that there was not another reason to revoke the cancellation decision. It followed, in his submission, that the Tribunal’s ultimate finding was “illogical and unreasonable in the sense of being so unreasonable that no reasonable Tribunal could have come to the same decision.”