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Ali v Minister for Home Affairs

Ali v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA
Ali v Minister for Home Affairs [2019] FCA 1900

File number: VID 318 of 2018

Judge: STEWARD J

Date of judgment: 18 November 2019

Catchwords: MIGRATION – application for judicial review of a decision of the Assistant Minister for Home Affairs not to revoke a visa cancellation – where visa was mandatorily cancelled as the applicant did not pass the character test by reason of his substantial criminal record – whether the Assistant Minister misunderstood the Migration Act 1958 (Cth) or its operation in concluding or assuming that certain claims would “necessarily” be considered in any future protection visa application – whether the Assistant Minister misunderstood the Act or its operation in concluding or assuming that the applicant’s claims would be considered in the same manner in any future protection visa application – whether the Assistant Minister misunderstood the Act or its operation in concluding or assuming that Australia’s non‑refoulement obligations with respect to the applicant would be considered in any future protection visa application

Legislation:
Migration Act 1958 (Cth) ss 5H, 5J, 36, 65, 499, 501, 501BA, 501CA

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, signed 31 January 1967, 606 UNTS 267 (entered into force for Australia 13 December 1973)

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

Cases cited:
BCR16 v Minister for Immigrationand Border Protection (2017) 248 FCR 456

CRI028 v Republic of Nauru [2018] HCA 24; (2018) 356 ALR 50

DOB18 v Minister for Home Affairs [2018] FCA 1523

DOB18 v Minister for Home Affairs [2019] FCAFC 63

FQM18 v Minister for Home Affairs [2019] FCA 1263

GBV18 v Minister for Home Affairs [2019] FCA 1132

Ibrahim v Minister for Home Affairs [2019] FCAFC 89

Minister for Home Affairs v Omar [2019] FCAFC 188

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599

Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317

Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1

Omar v Minister for Home Affairs [2019] FCA 279

SZBZJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 771

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531

VPKY v Minister for Home Affairs [2019] FCA 1767

Date of hearing: 30 August 2019

Registry: Victoria

Division: General Division

National Practice Area: Administrative…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCA 1900
Decision Date: 18 November 2019

CaseChat Overview and Summary

In the case of Ali v Minister for Home Affairs, the applicant sought judicial review of the Assistant Minister for Home Affairs' decision not to revoke a visa cancellation. The visa had been cancelled under section 501CA of the Migration Act 1958 (Cth) because the applicant did not pass the character test, due to his substantial criminal record. The applicant argued that the Assistant Minister had misunderstood the Act or its operation in concluding that certain claims would necessarily be considered in any future protection visa application, and that the claims would be considered in the same manner and Australia’s non-refoulement obligations would be taken into account.

The court was required to determine whether the Assistant Minister had misunderstood the Act or its operation in reaching these conclusions. This involved examining the statutory provisions and their interpretation, as well as the principles of administrative law relevant to the review of ministerial decisions. Specifically, the court considered whether the Assistant Minister had correctly applied the criteria under section 501CA of the Act, and whether there were any errors in the understanding of the statutory framework or its application to the applicant's circumstances.

The court found that the Assistant Minister had not misunderstood the Act or its operation. It held that the Assistant Minister was entitled to conclude that the claims would necessarily be considered in any future protection visa application, as they were matters that would naturally arise in the context of such an application. Furthermore, the court found that there was no error in the Assistant Minister's assumption that the claims would be considered in the same manner, and that Australia’s non-refoulement obligations would be taken into account. The decision was consistent with the statutory framework and there were no grounds for judicial intervention.

The application for judicial review was dismissed, with costs to be agreed or assessed. This outcome reflects the court's conclusion that the Assistant Minister's decision was legally sound and within the scope of the statutory powers conferred by the Migration Act.

Orders

Orders of the court

1. The application for judicial review be dismissed with costs to be 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

Section 501CA of the Act provides as follows:Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. (2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a)would be the reason, or a part of the reason, for making the original decision; and (b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3) As soon as practicable after making the original decision, the Minister must: (a)give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a)the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i)that the person passes the character test (as defined by section 501); or (ii)that there is another reason why the original decision should be revoked. (5)If the Minister revokes the original decision, the original decision is taken not to have been made. (6) Any detention of the person that occurred during any part of the period: (a) beginning when the original decision was made; and(b) ending at the time of the revocation of the original decision; is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention. (7)A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.Facts The applicant did not dispute the account of his criminal offending as set out in the reasons for decision of the Assistant Minister. These had been derived from the sentencing remarks of the presiding County Court judge. In 2013, the applicant was a taxi driver in Melbourne. Late one evening his car was hailed by three young women in the city. One of these was the victim. She was 19 years old. She sat in the front seat. Her two friends were dropped off. The victim instructed the applicant to drive her home. On the way the applicant talked about going into the city with her; he said her fare would be free; he said he could turn the meter off because the victim was “too pretty to have the meter on”. The victim did not respond. The car turned into the victim’s street. She went to pay. The applicant lent towards her and began to kiss her on the mouth. She pulled her head back but the applicant put his left hand on the back of her head and pushed it towards his lap. The victim pulled away and said “No”. The applicant, whilst giggling, put his right hand down the front of her top into her bra and groped her left breast. This was the first count of his offending. The victim tried to get away. The applicant then reached across with his hand, pushed her dress aside, and moved her underwear to expose her vagina which he then licked. This was the second count of offending. The victim then opened the taxi door and stumbled out.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	VID 318 of 2018
Judge:	STEWARD J
Date of judgment:	18 November 2019
Catchwords:	MIGRATION – application for judicial review of a decision of the Assistant Minister for Home Affairs not to revoke a visa cancellation – where visa was mandatorily cancelled as the applicant did not pass the character test by reason of his substantial criminal record – whether the Assistant Minister misunderstood the Migration Act 1958 (Cth) or its operation in concluding or assuming that certain claims would “necessarily” be considered in any future protection visa application – whether the Assistant Minister misunderstood the Act or its operation in concluding or assuming that the applicant’s claims would be considered in the same manner in any future protection visa application – whether the Assistant Minister misunderstood the Act or its operation in concluding or assuming that Australia’s non‑refoulement obligations with respect to the applicant would be considered in any future protection visa application
Legislation:	Migration Act 1958 (Cth) ss 5H, 5J, 36, 65, 499, 501, 501BA, 501CA Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, signed 31 January 1967, 606 UNTS 267 (entered into force for Australia 13 December 1973) International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Cases cited:	BCR16 v Minister for Immigrationand Border Protection (2017) 248 FCR 456 CRI028 v Republic of Nauru [2018] HCA 24; (2018) 356 ALR 50 DOB18 v Minister for Home Affairs [2018] FCA 1523 DOB18 v Minister for Home Affairs [2019] FCAFC 63 FQM18 v Minister for Home Affairs [2019] FCA 1263 GBV18 v Minister for Home Affairs [2019] FCA 1132 Ibrahim v Minister for Home Affairs [2019] FCAFC 89 Minister for Home Affairs v Omar [2019] FCAFC 188 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599 Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 Omar v Minister for Home Affairs [2019] FCA 279 SZBZJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 771 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 VPKY v Minister for Home Affairs [2019] FCA 1767
Date of hearing:	30 August 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative…