FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AZC21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1328
File number(s): SYG 643 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 19 August 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal cancelling temporary protection visa – clarification or change in understanding of law by High Court concerning constitutional validity of indefinite detention between date of Tribunal’s decision and date of hearing of judicial review application – whether Tribunal failed to consider or deal with submission or contention concerning indefinite detention based on understanding of law at time of Tribunal’s decision – whether Tribunal failed to consider or deal with submission or contention concerning indefinite detention based on understanding of law at time of hearing of judicial review application – whether error of Tribunal was material – whether assessment of materiality affected by clarification or change in understanding of the law Legislation: Migration Act 1958 (Cth) ss 46A, 48A, 48B, 116, 189, 195A, 476
Migration Regulations 1994 (Cth) cls 785.511(a)(ii) of Sch 2, 4013 of Sch 4
Cases cited: AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; 304 FCR 586
DFO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 38; 296 FCR 204
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321
NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; 144 FCR 1
NZYQ v Minister for Immigration and Border Protection [2023] HCA 37; 280 CLR 137
Singh v Minister for Home Affairs [2019] FCAFC 3
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of hearing: 18 July 2025 Place: Parramatta Counsel for the Applicant: Mr S Kikkert Solicitor for the Respondents: Mr T Young (Mills Oakley) ORDERS
SYG 643 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AZC21
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
19 AUGUST 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 16 April 2021, the applicant lodged an application for judicial review, pursuant…
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- AZC21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1328
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- [2025] FedCFamC2G 1328
- Decision Date
CaseChat Overview and Summary
The applicant, a citizen of Iran, challenged the decision of the Administrative Appeals Tribunal (Tribunal) to affirm the decision of a delegate of the Minister for Immigration and Citizenship (Minister) to cancel his temporary protection visa (TPV). The applicant had been granted a TPV in 2016, which was later cancelled due to criminal charges against him. The applicant argued that the Tribunal failed to address his claim that he would be detained indefinitely as a result of the visa cancellation. The applicant contended that Iran would not accept his involuntary return, and therefore, he would be held in immigration detention indefinitely.
The primary legal issue before the court was whether the Tribunal erred in failing to consider the applicant's claim that he would be detained indefinitely following the cancellation of his visa. The applicant argued that the Tribunal's failure to address this claim amounted to a denial of procedural fairness and an error in the Tribunal's understanding of the law concerning indefinite detention. The court had to determine whether the Tribunal's failure to address this claim was material and whether this failure was influenced by the High Court's clarification on indefinite detention in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.
The court found that the Tribunal had acknowledged the applicant's claim regarding indefinite detention but did not engage with it. The Tribunal had considered the consequences of detention but did not address the specific claim that the applicant would be detained indefinitely. The court held that the Tribunal's failure to address the applicant's claim about indefinite detention was not material because the Tribunal had considered other relevant factors in its decision. The court also noted that the Tribunal's understanding of the law at the time of its decision did not differ significantly from the High Court's later clarification. Consequently, the application for judicial review was dismissed.
The primary legal issue before the court was whether the Tribunal erred in failing to consider the applicant's claim that he would be detained indefinitely following the cancellation of his visa. The applicant argued that the Tribunal's failure to address this claim amounted to a denial of procedural fairness and an error in the Tribunal's understanding of the law concerning indefinite detention. The court had to determine whether the Tribunal's failure to address this claim was material and whether this failure was influenced by the High Court's clarification on indefinite detention in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.
The court found that the Tribunal had acknowledged the applicant's claim regarding indefinite detention but did not engage with it. The Tribunal had considered the consequences of detention but did not address the specific claim that the applicant would be detained indefinitely. The court held that the Tribunal's failure to address the applicant's claim about indefinite detention was not material because the Tribunal had considered other relevant factors in its decision. The court also noted that the Tribunal's understanding of the law at the time of its decision did not differ significantly from the High Court's later clarification. Consequently, the application for judicial review was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
For the reasons that follow, the application is dismissed.FACTUAL BACKGROUND In August 2011, the applicant, a citizen of Iran, arrived in Australia as an unauthorised maritime arrival. In October 2015, the applicant lodged an application for a TPV. He claimed to fear harm if returned to Iran, resulting from his alleged involvement with the wife of a highly ranked politician while installing a satellite dish in their place. In September 2016, the applicant was granted a TPV with a duration of three years (2016 TPV). On 26 August 2019, the applicant lodged an application for a further TPV, as a result of which, pursuant to cl 785.511(a)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), the 2016 TPV remained in effect until “35 days after the day the application [for the further TPV] is finally determined”. On 9 November 2019, the applicant was charged with two criminal offences relating to an incident in the early hours of 9 November 2019 when he was alleged to have made threats against, and broken into the house of, a person with whom the applicant had been in a relationship. On 5 December 2019, the Department of Home Affairs (Department) sent the applicant a Notice of Intention to Consider Cancellation of the TPV under s 116 of the Act (NOICC) on the basis of the alleged facts relating to the criminal charge. The NOICC relied on s 116(1)(e) which is set out in paragraph 34 below. On 24 January 2020, the applicant, by his representative (Representative), provided a written response to the NOICC. The Representative wrote that, since the charges were based on unproven allegations, the decision-maker should not be satisfied that the presence of the applicant in Australia was or may be a risk to the health or safety of an individual. The Representative added that, even if the power to cancel the visa was enlivened, the best course of action was not to cancel the applicant’s visa. On 3 February 2020, a delegate of the first respondent made a decision to cancel the 2016 TPV under s 116(1) of the Act. On 3 February 2020, the applicant applied to the Tribunal for review of the delegate’s decision. On 2 March 2021, the Tribunal invited the applicant to attend a hearing on 17 March 2021. Prior to the hearing, the applicant was convicted of the two criminal offences. The court imposed an Intensive Correction Order for an aggregate of 18 months and issued an Apprehended Violence Order for five years. On 17 March 2021, the applicant appeared before the Tribunal to give evidence and present arguments. On 24 March 2021, the Tribunal made a decision affirming the delegate’s decision to cancel the 2016 TPV.TRIBUNAL’S DECISION The Tribunal at [2] and [7] recorded that the issues before it were whether the ground for cancelling the 2016 TPV in s 116(1)(e) was made out and, if so, whether the 2016 TPV should be cancelled having regard to all relevant considerations. The Tribunal at [12]-[13] summarised the written evidence and submissions provided by the applicant to the Department and the Tribunal.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 24 March 2021, the Tribunal made a decision affirming the delegate’s decision to cancel the 2016 TPV.TRIBUNAL’S DECISION The Tribunal at [2] and [7] recorded that the issues before it were whether the ground for cancelling the 2016 TPV in s 116(1)(e) was made out and, if so, whether the 2016 TPV should be cancelled having regard to all relevant considerations. The Tribunal at [12]-[13] summarised the written evidence and submissions provided by the applicant to the Department and the Tribunal. The Tribunal at [14]-[18] summarised the evidence given by the applicant and three character witnesses at the hearing before the Tribunal. The Tribunal at [19]-[26] considered whether the ground for cancelling the 2016 TPV in s 116(1)(e) of the Act was made out. The Tribunal at [25] was “satisfied that the presence of the applicant in Australia is or may be, or would or might be, a risk to the safety of an individual or individuals, namely his former partner and/or her family”. It followed that, as stated by the Tribunal at [26], it was satisfied that the ground for cancellation in s 116(1)(e) existed. In circumstances where the power to cancel the 2016 TPV was enlivened, the Tribunal at [28]-[64] considered whether to exercise the discretionary power to cancel the 2016 TPV. The Tribunal had regard to the matters in the Department’s Procedures Advice Manual (PAM3) as follows:(a)purpose of visa holder’s travel and stay in Australia and whether visa holder has a compelling need to travel to or remain in Australia - [29]–[31];(b)extent of compliance with visa conditions - [32]–[33]; (c)degree of hardship that may be caused - [34]–[38];(d)circumstances in which ground for cancellation arose - [39]–[43]; (e)past and present behaviour towards the Department - [44]–[45];(f)whether there would be consequential cancellations - [46]–[47]; (g)mandatory legal consequences - [48]–[49];(h)non-refoulement obligations and best interests of any children - [50]–[59]. The Tribunal at [63], on weighing the competing considerations, concluded that the 2016 TPV should be cancelled. The Tribunal stated:On balance, the Tribunal is satisfied that the international obligations, the hardship [to] the applicant, and other matters as discussed above do not outweigh the matters in favour of cancellation. The applicant has been convicted of serious offences during a time of being a temporary resident of Australia.PROCEEDINGS IN THIS COURTJudicial review application and steps up to hearing on 18 July 2025 On 16 April 2021, the applicant lodged an application in this Court seeking judicial review of the Tribunal’s decision. Following a period of inactivity, on 3 April 2025 the registry of the Court notified the parties that the matter was listed for hearing on 20 May 2025. At the request of one party, not opposed by the other, the hearing date was adjourned to 18 July 2025. On 20 June 2025, the applicant took steps to file an amended application (Amended Application) which contained two grounds. The applicant subsequently abandoned ground 2, leaving ground 1 as follows (as written):1. The Tribunal fell into jurisdictional error by failing to address a substantial, clearly articulated claim, namely that the Applicant would be in detention indefinitely as a consequence of the cancellation of his visa. This amounted to a denial of procedural fairness.1.1. Alternatively, the Tribunal failed to give proper, genuine and/or realistic consideration to matters before it by not genuinely engaging with the Applicant’s evidence.1.2. Alternatively, the Tribunal failed to take into account relevant consideration or failed to consider the legal consequences faced by the Applicant.1.3. Alternatively, the Tribunal fell into jurisdictional error by failing to act on a correct understanding of the law, particularly regarding indefinite detention, as clarified in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37.Particulars1.1. The Applicant claimed that, as a consequence of the cancellation of his visa, he would be held in immigration detention indefinitely.1.2. Iran does not accept involuntary returnees.1.3. At CB, p 36, the Applicant expressly submitted that “[Applicant] is a citizen of Iran and it is not practicable in a foreseeable future to remove him back to Iran.”1.4. At CB, p 36, the Applicant expressly submitted that “Given the status of [Applicant] impracticality of his removal, even under s197C of the Act, the only feasible legal consequence of cancellation of his visa is for him be detained in immigration detention indefinitely.”1.5. The delegate noted the following: “I am also mindful that if the Minister does not consider exercising that power, or does not exercise it in the visa holder’s favour, the visa holder would be liable to removal as soon as reasonably practicable in accordance with s198 of the Act, including to Iran, having regard to section 197C.” (CB, p 49).1.6. The delegate acknowledged the following submission: “It was submitted that given the status of the visa holder and the impracticality of his removal from Australia, even under section 197C of the Act, the only feasible legal consequence of a decision to cancel his visa would be for him to be detained indefinitely in immigration detention. That is after considering the Minister’s non-compellable powers under section 195A and section 48B of the Act. The agent has questioned whether it is logical for the Minister to cancel the visa holder’s Protection visa, causing him to be detained and then exercise his other non-compellable powers to release him from detention.”1.7. The delegate further noted:“I have also considered whether as a consequence of a cancellation decision, the visa holder may be subject to indefinite detention. As he is an unauthorised maritime arrival, I note that this is a possibility.”1.8. The Tribunal acknowledged the Applicant’s claim regarding indefinite detention (CB p 127. Para [12]), however it did not engage with this claim.1.9. The Tribunal acknowledged the Applicant’s claim as follows:“He cannot return to his Iran because his life would be in danger. He could not say goodbye to his mother when she was sick. He cannot survive in detention and would rather die than return to Iran or stay in detention. He will never commit any further offences and he asks to be given another chance.” (CB, p 128, para [13])The Tribunal did not address the aspect of the Applicant’s claim regarding him being detained indefinitely.1.10. While the Tribunal considered the consequence of detention (CB, p 132-133, para [48]-[49]), the Tribunal did not consider his claim regarding him being indefinitely detained1.11. HSCK v Minister for Immigration and Multicultural Affairs [2025] FCAFC 17 and RJFB v Minister for Immigration and Multicultural Affairs [2025] FCA 229 are authorities that the Minister needs to act on an incorrect understanding of the law regarding indefinite detention, as clarified in NZYQ.
Ratio Decidendi
Legal Principle Established
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