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BAL19 v Minister for Home Affairs

BAL19 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA
BAL19 v Minister for Home Affairs [2019] FCA 2189

File number: NSD 393 of 2019

Judge: RARES J

Date of judgment: 24 December 2019

Catchwords:
MIGRATION – application for Constitutional writ relief – where Minister personally refused grant of protection visa under s 501(1) of the Migration Act 1958 (Cth) because any risk of applicant being danger to Australian community under s 501(6)(d)(v) was unacceptable – where Minister found applicant to be refugee and Australia to owe applicant protection obligations – where Minister’s reasons referred to theoretical possibility of grant of another visa but did not consider legal consequence of refusal of what would happen to applicant if refouled in accordance with ss 197C and 198 of the Migration Act 1958 (Cth) – whether Minister referred to possibility of another visa to avoid immediate breach of non-refoulement obligations so applicant would be left indefinitely in immigration detention – whether Minister’s reasoning perfunctory and failed to engage in active intellectual process because of lack of consideration of legal consequences of refoulement – where reference to theoretical grant of other visa an irrelevant consideration – where applicant had no realistic prospect of being granted any other visa if Minister exercised non-compellable powers to allow application under ss 48B and or 195A of the Migration Act 1958 (Cth) because of Minister’s finding that any risk of danger to Australian community from applicant was unacceptable and such risk necessarily inherent in grant of any other visa – material jurisdictional error

MIGRATION – whether general powers to refuse to grant visas under s 501 and its analogues in Pt 9 of the Migration Act 1958 (Cth) and prescription of PIC 4001 in cl 785.226 of the Migration Regulations 1994 (Cth) of criterion for protection visa under s 31(3) are inconsistent with specific power in s 36(1C) of the Migration Act 1958 (Cth) to refuse to grant a protection visa – where enactment of ss 36(1C) and 197C intended to codify Australia’s non-refoulement and protection obligations under Arts 32 and 33 of the Refugees Convention – where specific, mandatory and more restrictive criteria for protection visa in s 36(1C) inconsistent with s 501(6)(d)(v) and excludes availability of general powers in s 501 and its analogues in Pt 9 as a basis to refuse to grant protection visa – where PIC 4001 in cl 785.226 inconsistent with s 36(1C)

STATUTORY INTERPRETATION – whether regulation invalid if inconsistent with specific provision of Act – where cl 786.226(a) made under s 31(3) prescribed that PIC 4001 was criterion for protection visa – where PIC 4001 prescribed disqualifying criteria that s 36(1C) expressly provided were not disqualifications for grant of protection visa – where PIC 4001 invalid as inconsistent with s 36(1C)

Legislation:
Acts Interpretation Act 1901 (Cth) s 33

Migration Act 1958 (Cth) ss 5, 5H, 5J, 5M, 31, 35A, 36, 48A, 48B, 65, 91U (repealed), 116, 189, 195A, 197A, 197B, 197C, 198, 200, 201, 411, 476A, 500, 501, 501A, 501B, 501BA, 501C, 501CA, 501F,…

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 2189
Decision Date: 24 December 2019

CaseChat Overview and Summary

The case of BAL19 v Minister for Home Affairs involved the applicant, BAL19, who applied for a protection visa under the Migration Act 1958 (Cth) but was refused by the Minister for Home Affairs. The applicant sought judicial review of the decision to refuse the grant of the visa on the grounds that the Minister had made an error in his decision-making process and had failed to consider the legal consequences of refoulement, which would result in the applicant being returned to a country where they would face persecution. The applicant also argued that the Minister's decision was inconsistent with Australia's non-refoulement obligations under the Refugees Convention.

The central legal issues in this case were whether the Minister had made a material jurisdictional error in his decision-making process by failing to consider the legal consequences of refoulement and whether the Minister's decision was inconsistent with Australia's non-refoulement obligations. The court had to determine whether the Minister's decision to refuse the grant of the visa was invalid because it did not comply with the mandatory criteria set out in s 36 and cl 785.227 of the Act, and whether the Minister had failed to consider the legal consequences of refoulement, which would result in the applicant being returned to a country where they would face persecution. The court also had to determine whether the regulation prescribing the criterion for a protection visa under s 36(1C) was inconsistent with the specific provision of the Act.

The court found that the Minister's decision to refuse the grant of the visa was invalid because it did not comply with the mandatory criteria set out in s 36 and cl 785.227 of the Act, and because the Minister had failed to consider the legal consequences of refoulement, which would result in the applicant being returned to a country where they would face persecution. The court found that the Minister had made a material jurisdictional error by failing to consider the legal consequences of refoulement, which would result in the applicant being returned to a country where they would face persecution. The court also found that the regulation prescribing the criterion for a protection visa under s 36(1C) was inconsistent with the specific provision of the Act. The court held that the Minister's decision was invalid because it did not comply with the mandatory criteria set out in s 36 and cl 785.227 of the Act, and because the Minister had failed to consider the legal consequences of refoulement, which would result in the applicant being returned to a country where they would face persecution.

ORDERS:
1. The decision of the first respondent made on 12 July 2019 to refuse to grant the applicant a protection visa be quashed.
2. The first or second respondent determine, as soon as reasonably practicable, the applicant’s application for a protection visa in accordance with law.
3. The first respondent pay the applicant’s costs.

Orders

Orders of the court

1. The decision of the first respondent made on 12 July 2019 to refuse to grant the applicant a protection visa be quashed.

2. The first or second respondent determine, as soon as reasonably practicable, the applicant’s application for a protection visa in accordance with law.

3. The first respondent pay the applicant’s costs.

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

Nevertheless, this conclusion is another reason why the Minister’s decision is invalid independently of my findings on the failure to consider issue. Prima facie, the application for the protection visa must be assessed in accordance only with the mandatory criteria in s 36 and cl 785.227 and the Minister cannot refuse the grant of the visa under s 501(1) or any other provision in Pt 9 of the Act. That is because the Minister has found that the applicant is a refugee having met the criteria in s 36 and is, subject to any relevant application of cl 785.227, entitled to be granted a protection visa in accordance with s 65(1).Conclusion In all of the circumstances, the Minister’s decision under s 501 must be quashed and the Minister must be required to make a prompt decision on the application for a visa according to law. He must also pay the applicant’s costs.

Ratio Decidendi

Legal Principle Established

The Minister contended that the real issue was “the level of particularity at which the legal consequences of the decision to refuse the visa ought to be identified” and considered by the decision-maker. He disputed the applicant’s argument that he had to take into account that, if refouled to Sri Lanka, the applicant could be killed or significantly mistreated. The Minister argued that he had identified correctly that the legal consequence of refusing the visa would be that the applicant would be returned to Sri Lanka and that s 198 precluded consideration of Australia’s non-refoulement obligations at that stage. He contended that he had also adverted to the possibility of exercising his powers under s 195A to grant a visa to a person, if he considered that course to be in the public interest. He also submitted that he had considered the practical consequences of refoulement (at [91]), namely that, first, the applicant “would face a well-founded fear of persecution at the hands of the Sri Lankan Security Forces and paramilitary groups”, secondly, this would breach Australia’s non-refoulement obligations (at [92]) and, thirdly, there was potential for harm to the applicant (at [117]). The Minister argued that he did not need to consider the precise nature of the potential harm and, in particular, whether the applicant might be killed if returned to Sri Lanka, even though that is what he had claimed in his application for the visa. (b) Consideration The nature of the visa which an applicant seeks, the subject of the Minister’s consideration for the exercise of his discretion under s 501(1), is necessarily a mandatory relevant consideration. That is because the Minister must have regard to what the visa is, the grant or refusal of which, he is considering. That means that, in a case like the present, the Minister must, as a fundamental element in his decision-making, take into account or have regard to the criteria that an applicant for a protection visa must satisfy under ss 35A(6) and 36 of the Act in order for it to be granted: Reg v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J with whom Gibbs J agreed at 324; Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 181-183 [103]-[112] per Rares J, approved in Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267] per Jacobson, Lander and Foster JJ, and in Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217 at [29] per Rares, Burley and O’Bryan JJ. Section 36(1C) creates a specific, objective criterion for a protection visa that an applicant for such a visa must satisfy. That criterion is that he or she is not a person whom the Minister considers, on reasonable grounds, relevantly is either a danger to Australia’s security or, because of a final judgment convicting him or her of a particularly serious crime (as defined in s 5M), a danger to the Australian community.

File number:	NSD 393 of 2019
Judge:	RARES J
Date of judgment:	24 December 2019
Catchwords:	MIGRATION – application for Constitutional writ relief – where Minister personally refused grant of protection visa under s 501(1) of the Migration Act 1958 (Cth) because any risk of applicant being danger to Australian community under s 501(6)(d)(v) was unacceptable – where Minister found applicant to be refugee and Australia to owe applicant protection obligations – where Minister’s reasons referred to theoretical possibility of grant of another visa but did not consider legal consequence of refusal of what would happen to applicant if refouled in accordance with ss 197C and 198 of the Migration Act 1958 (Cth) – whether Minister referred to possibility of another visa to avoid immediate breach of non-refoulement obligations so applicant would be left indefinitely in immigration detention – whether Minister’s reasoning perfunctory and failed to engage in active intellectual process because of lack of consideration of legal consequences of refoulement – where reference to theoretical grant of other visa an irrelevant consideration – where applicant had no realistic prospect of being granted any other visa if Minister exercised non-compellable powers to allow application under ss 48B and or 195A of the Migration Act 1958 (Cth) because of Minister’s finding that any risk of danger to Australian community from applicant was unacceptable and such risk necessarily inherent in grant of any other visa – material jurisdictional error MIGRATION – whether general powers to refuse to grant visas under s 501 and its analogues in Pt 9 of the Migration Act 1958 (Cth) and prescription of PIC 4001 in cl 785.226 of the Migration Regulations 1994 (Cth) of criterion for protection visa under s 31(3) are inconsistent with specific power in s 36(1C) of the Migration Act 1958 (Cth) to refuse to grant a protection visa – where enactment of ss 36(1C) and 197C intended to codify Australia’s non-refoulement and protection obligations under Arts 32 and 33 of the Refugees Convention – where specific, mandatory and more restrictive criteria for protection visa in s 36(1C) inconsistent with s 501(6)(d)(v) and excludes availability of general powers in s 501 and its analogues in Pt 9 as a basis to refuse to grant protection visa – where PIC 4001 in cl 785.226 inconsistent with s 36(1C) STATUTORY INTERPRETATION – whether regulation invalid if inconsistent with specific provision of Act – where cl 786.226(a) made under s 31(3) prescribed that PIC 4001 was criterion for protection visa – where PIC 4001 prescribed disqualifying criteria that s 36(1C) expressly provided were not disqualifications for grant of protection visa – where PIC 4001 invalid as inconsistent with s 36(1C)
Legislation:	Acts Interpretation Act 1901 (Cth) s 33 Migration Act 1958 (Cth) ss 5, 5H, 5J, 5M, 31, 35A, 36, 48A, 48B, 65, 91U (repealed), 116, 189, 195A, 197A, 197B, 197C, 198, 200, 201, 411, 476A, 500, 501, 501A, 501B, 501BA, 501C, 501CA, 501F,…