FEDERAL COURT OF AUSTRALIA
AXT19 v Minister for Home Affairs [2020] FCAFC 32
Appeal from: AXT19 v Minister for Home Affairs [2019] FCA 1423 File number: QUD 539 of 2019 Judges: FLICK, GRIFFITHS AND MOSHINSKY JJ Date of judgment: 6 March 2020 Catchwords: MIGRATION – mandatory cancellation of appellant’s visa under s 501(3A) of the Migration Act 1958 (Cth) – decision of a delegate of the Minister under s 501CA(4) not to revoke the cancellation decision – decision of the Administrative Appeals Tribunal to affirm the delegate’s decision – where the appellant was a citizen of Myanmar and relied on international non-refoulement obligations in his representations as to why the cancellation decision should be revoked – whether the Tribunal failed to consider the appellant’s representations based on non-refoulement obligations and the fear of harm if the appellant were returned to Myanmar – appeal dismissed with costs Legislation: Migration Act 1958 (Cth), ss 501, 501CA Cases cited: Ali v Minister for Immigration and Border Protection [2018] FCA 650
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
DOB18 v Minister for Home Affairs [2019] FCAFC 63
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Goundar v Minister for Immigration and Border Protection (2016) 160 ALD 123
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Minister for Home Affairs v Omar (2019) 373 ALR 569
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56
Date of hearing: 26 February 2020 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 62 Counsel for the Appellant: Mr Hamish Clift Solicitor for the Appellant: Fisher Dore Lawyers Counsel for the First Respondent: Mr Patrick Knowles Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
QUD 539 of 2019 BETWEEN: AXT19
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGES:
FLICK, GRIFFITHS AND MOSHINSKY JJ
DATE OF ORDER:
6 MARCH 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
Introduction
The appellant, a citizen of Myanmar, appeals from a judgment of a Judge of this Court dismissing an application for judicial review.
The appellant came to Australia in 2011 pursuant to a Refugee (Subclass 200) visa. In April 2015, the appellant was convicted in South Australia of an offence of indecent assault committed against a 14 year old girl. For that offence, he was sentenced to four months’ imprisonment, wholly suspended upon him entering into a bond in the sum of $200 to be of good behaviour for a period of 18 months.…
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Details
- Case
- [2020] FCAFC 32
- Decision Date
CaseChat Overview and Summary
The appeal in AXT19 v Minister for Home Affairs involved the appellant, a citizen of Myanmar, who resided in Australia on a Refugee (Subclass 200) visa since 2011. The appellant's visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to criminal offences committed while he was under the influence of alcohol. The appellant's request for the cancellation decision to be revoked was denied by a delegate of the Minister and subsequently by the Administrative Appeals Tribunal (AAT). The appellant argued that the Tribunal failed to consider his representations based on Australia's non-refoulement obligations and the risk of harm if returned to Myanmar. This appeal was dismissed by the court.
The primary legal issue in this case was whether the Tribunal properly considered the appellant's representations regarding Australia's non-refoulement obligations and the risk of harm if he were returned to Myanmar. The appellant argued that the Tribunal did not adequately consider these representations when deciding not to revoke the cancellation decision. The court examined the Tribunal's decision and found that it had meaningfully engaged with the appellant's representations. The court concluded that the Tribunal's decision was not affected by jurisdictional error, and therefore the appeal was dismissed.
The court's reasoning in dismissing the appeal was that the Tribunal had considered the appellant's representations concerning non-refoulement obligations and the fear of harm if returned to Myanmar. The Tribunal's decision acknowledged that the appellant would have further avenues to pursue his refugee status in Australia, where his non-refoulement obligations would be assessed thoroughly. The court found that the Tribunal's reasoning was consistent with previous court decisions, and there was no error in the Tribunal's consideration of the appellant's representations.
The final orders of the court were to dismiss the appeal and to require the appellant to pay the costs of the first respondent, as agreed or taxed. This decision reinforces the requirement for the AAT to adequately consider all relevant representations made by the appellant in decisions regarding the revocation of visa cancellation under the Migration Act.
The primary legal issue in this case was whether the Tribunal properly considered the appellant's representations regarding Australia's non-refoulement obligations and the risk of harm if he were returned to Myanmar. The appellant argued that the Tribunal did not adequately consider these representations when deciding not to revoke the cancellation decision. The court examined the Tribunal's decision and found that it had meaningfully engaged with the appellant's representations. The court concluded that the Tribunal's decision was not affected by jurisdictional error, and therefore the appeal was dismissed.
The court's reasoning in dismissing the appeal was that the Tribunal had considered the appellant's representations concerning non-refoulement obligations and the fear of harm if returned to Myanmar. The Tribunal's decision acknowledged that the appellant would have further avenues to pursue his refugee status in Australia, where his non-refoulement obligations would be assessed thoroughly. The court found that the Tribunal's reasoning was consistent with previous court decisions, and there was no error in the Tribunal's consideration of the appellant's representations.
The final orders of the court were to dismiss the appeal and to require the appellant to pay the costs of the first respondent, as agreed or taxed. This decision reinforces the requirement for the AAT to adequately consider all relevant representations made by the appellant in decisions regarding the revocation of visa cancellation under the Migration Act.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons that follow, we consider the primary judge’s conclusion, that the Tribunal’s decision was not affected by jurisdictional error, to be correct. In summary, in our view, the Tribunal did meaningfully engage with, and therefore consider, the appellant’s representations concerning Australia’s non-refoulement obligations and his representations relating to the risk of harm if he were returned to Myanmar. It follows that the appeal is to be dismissed.Background facts The appellant has resided in Australia on a Refugee (Subclass 200) visa since December 2011. Between 2014 and 2017, the appellant came before the courts on a number of occasions, largely for offences he committed while under the influence of alcohol. Significant among those offences was a charge of indecent assault committed against a 14 year old girl, for which the appellant was convicted and sentenced in April 2015. The police incident report states that the appellant had kissed the girl three times without permission after encountering her on a tram. As noted above, for this offence the appellant was sentenced to 4 months’ imprisonment, wholly suspended upon him entering a $200 good behaviour bond for a period of 18 months. The appellant breached this bond by committing further, minor offences. For his other offending, the appellant was sentenced, cumulatively, to an additional period of two months and 12 days. However, this additional period was suspended for 18 months upon the appellant entering into a good behaviour bond of $300. The appellant again breached his bond and served the additional two months and 12 days’ imprisonment. While serving his term of imprisonment, a delegate of the Minister made the cancellation decision pursuant to s 501(3A) of the Migration Act. The appellant requested that the cancellation decision be revoked. The appellant completed a form headed “Request for revocation of a mandatory visa cancellation under s501(3A)”. In the box provided for reasons for revocation, the appellant wrote: “Refugee”. Further detail was provided in an accompanying “Personal Circumstances Form”. In response to the question, “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?” the appellant checked the box “Yes” and stated:Yes, I left my country to save my life because the authority of Burma searching me to arrest.(Errors in original.) The form also included the question, “Are there any problems you would face if you have to return to your country of citizenship?” to which the appellant responded:I must be charge with illegal crossing the border and becoming as a refugee.I must be putting to jail for long time by the authority with my case the reason why I left my country.(Errors in original.) In the section of the form for the provision of further information, the appellant relevantly stated as follows:My life is still danger in my country because the conflict between Burmese Army and Ethnic Arms group are still happening in the country. Mostly, the ethnic people (minorities) are living with fear every day due to the Burmese Army attacked can never stop in the area. Many villagers were arrested and tortured brutally until now. There is no human rights, no freedom and no peace in the country because the country are still under the military controlled. Democratic leader Aung San Su Kyi and her parliament member can do nothing over the military.(Errors in original.)
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Section 501CA of the Migration Act relevantly provides as follows:501CACancellation 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.…(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.… The relevant principles were discussed by the Full Court of this Court in Omar (FFC) at [34]-[41]. They were also discussed in our judgment in GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [31]-[32]. We adopt the summaries of the applicable principles set out in those cases.Application of principles to the present case The appellant’s submissions focus on [118] of the Tribunal reasons, which has been set out above. In particular, the appellant highlights the second, third and fourth sentences, in which the Tribunal stated that: the effect of Direction 75 and subsequent Court decisions was that the appellant would have further avenues through which to pursue his refugee status in Australia; in those processes, Australia’s non-refoulement obligations would be “assessed in a fulsome manner”; and that this limited the extent to which the non-refoulement obligations in this matter favoured revocation. In the appellant’s submission, these statements demonstrate that the Tribunal failed to engage with, or take into account, the appellant’s representations regarding “another reason” for revocation of the cancellation decision. The appellant relies on the statement of the primary judge at [17] that the Tribunal, at [118], “chose to do no more than acknowledge that the ‘effect of Direction No 75 and subsequent Federal Court decisions is such that the applicant will have further avenues through which he can pursue his refugee status in Australia’”. The appellant submits that the error in the Tribunal’s reasoning at [118] is similar to the error considered by the Full Court in BCR16 and very similar to the error considered by Mortimer J in Omar (first instance). It is submitted that, for the same reasons as relief was granted in those cases, the relief sought by the appellant in this case should have been granted by the primary judge. The appellant submits that the primary judge fell into error by not following Omar (first instance) and by failing to hold that the Tribunal failed to consider all of the matters (including factual matters) that the appellant had represented would be (or would be part of) a “reason” for revoking the cancellation decision, namely non-refoulement obligations and the claim to fear harm.
Ratio Decidendi
Legal Principle Established
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