BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Case [2025] FCAFC 14

FEDERAL COURT OF AUSTRALIA

BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 14

Appeal from: BNY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 301
File number: QUD 211 of 2024
Judgment of: RANGIAH, DERRINGTON AND ROFE JJ
Date of judgment: 19 February 2025
Catchwords: MIGRATION – where Administrative Appeals Tribunal (Tribunal) affirmed decision not to revoke cancellation of visa under s 501CA(4) of the MigrationAct 1958 (Cth) – whether Tribunal failed to consider representations made by appellant – whether errors were material – whether Tribunal made a finding unsupported by evidence – appeal allowed
Legislation: Migration Act 1958 (Cth) ss 5J(1)(c), 36, 499(1), 499(2A), 501(3A), 501(6), 501(6)(a), 501(7)(c), 501CA(3), 501CA(3)(b), 501CA(4) and 501CA(4)(b)
Cases cited:

BNY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 301

Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104

Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75

CNY17 vMinister for Immigration and Border Protection (2019) 268 CLR 76

GBV18 v Minister for Home Affairs (2020) 274 FCR 202

GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 1

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12

Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

MZAPC vMinister for Immigration and Border Protection (2021) 273 CLR 506

PlaintiffM1/2021 v Minister for Home Affairs (2022) 275 CLR 582

Wilson TransformerCo Pty Ltd v Anti-Dumping Review Panel (2022) 290 FCR 1
Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 196
Date of hearing: 23 August 2024
Counsel for the Appellant: Mr G Rebetzke
Solicitor for the Appellant: Prisoners’ Legal Service
Counsel for the First Respondent: Mr B McGlade
Solicitor for the First Respondent: Sparke Helmore
Counsel for the Second Respondent: The Second Respondent filed a submitting notice

ORDERS

QUD 211 of 2024
BETWEEN:

BNY23

Appellant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

RANGIAH, DERRINGTON AND ROFE JJ

DATE OF ORDER:

19 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The judgment in BNY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 301 be set aside.

3.A writ of certiorari issue quashing the second respondent’s decision made on 10 May 2023.

4.A writ of mandamus issue requiring the second respondent to consider the appellant’s application for review of the first respondent’s decision made on 15 February 2023 according to law.

5.The first respondent pay the appellant’s costs of the appeal and the proceeding at first instance.

Note:   Entry of orders is dealt with in Rule 39.32 of…

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BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 14
Case
[2025] FCAFC 14
Decision Date

CaseChat Overview and Summary

The case of BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs involved the appellant, an Ethiopian national, challenging the decision of the Administrative Appeals Tribunal (Tribunal) which upheld the Minister's decision to not revoke the cancellation of his visa under section 501CA(4) of the Migration Act 1958 (Cth). The appellant, who has significant mental health issues and a history of criminal conduct, argued that the Tribunal failed to properly consider his representations and made findings unsupported by evidence. The appeal raised questions about whether the Tribunal appropriately applied the relevant statutory provisions and considered the appellant's circumstances.

The court had to decide whether the Tribunal failed to consider the appellant's representations, whether any errors were material, and whether the Tribunal's findings were supported by evidence. The court also needed to assess whether the Tribunal appropriately balanced the primary and other considerations outlined in the Migration Act and its Directions. The primary considerations, such as the protection of the Australian community and the extent of impediments if the appellant were removed, were central to the court's analysis.

In its reasoning, the court found that the Tribunal did not adequately consider the appellant's representations and failed to properly weigh the primary and other considerations. The court concluded that the Tribunal's decision was flawed as it did not sufficiently address the appellant's unique circumstances, particularly his mental health issues and the risk of significant hardship if removed from Australia. The Tribunal's finding that the appellant's conduct did not warrant a revocation of the visa cancellation was deemed to be unsupported by the evidence presented. Consequently, the appeal was allowed, and the Tribunal's decision was quashed.

The final orders of the court included setting aside the earlier judgment, quashing the Tribunal's decision, mandating the Minister to reconsider the appellant's application for review, and directing the Minister to pay the appellant's costs of the appeal and the proceeding at first instance. These orders aimed to ensure that the appellant's application would be properly assessed according to the law, taking into account all relevant considerations and evidence.

Orders

Orders of the court

1. The appeal be allowed.

2. The judgment in BNY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 301 be set aside.

3. A writ of certiorari issue quashing the second respondent’s decision made on 10 May 2023.

4. A writ of mandamus issue requiring the second respondent to consider the appellant’s application for review of the first respondent’s decision made on 15 February 2023 according to law.

5. The first respondent pay the appellant’s costs of the appeal and the proceeding at first instance.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Part 2 of Direction 99 had the heading, “Making a decision”. Paragraph 6 provided:6. Making a decisionInformed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision. Paragraph 7 provided:7. Taking the relevant considerations into account(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.(2)Primary considerations should generally be given greater weight than the other considerations.(3)One or more primary considerations may outweigh other primary considerations. Paragraph 8 had the heading, “Primary considerations”. That paragraph provided:8. Primary considerationsIn making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:(1)protection of the Australian community from criminal or other serious conduct;(2) whether the conduct engaged in constituted family violence;(3) the strength, nature and duration of ties to Australia;(4) the best interests of minor children in Australia;(5) expectations of the Australian community. Paragraphs 8.1, 8.1.1 and 8.1.2 have particular relevance for the present case. They set out a number of factors decision-makers were required to have regard to in considering the primary consideration of “protection of the Australian community”. They will be set out in full later in these reasons, but it may presently be noted that paragraph 8.1(2) required decision-makers to give consideration to (a) the “nature and seriousness of the non-citizen’s conduct to date”; and (b) “risk to the Australian community should the person commit further offences or engage in other serious conduct”. Paragraph 9 had the heading, “Other considerations”. Paragraph 9(1) provided:(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):a)legal consequences of the decision;b)extent of impediments if removed;c)impact on victims;d)impact on Australian business interests Paragraph 9.2 provided:9.2 Extent of impediments if removed(1)Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:a)the non-citizen’s age and health;b)whether there are substantial language or cultural barriers; andc)any social, medical and/or economic support available to them in that country.The Tribunal’s decision The appellant was born in 1993 in the Gambela region of Ethiopia. He is of Anuak ethnicity. The appellant’s mother died and his father was killed when the appellant was a child. The appellant fled to Kenya with members of his extended family in 2003, during a time when Anuak people were being massacred in the Gambela region.

Ratio Decidendi

Legal Principle Established

Paragraph 8 had the heading, “Primary considerations”. That paragraph provided:8. Primary considerationsIn making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:(1)protection of the Australian community from criminal or other serious conduct;(2) whether the conduct engaged in constituted family violence;(3) the strength, nature and duration of ties to Australia;(4) the best interests of minor children in Australia;(5) expectations of the Australian community. Paragraphs 8.1, 8.1.1 and 8.1.2 have particular relevance for the present case. They set out a number of factors decision-makers were required to have regard to in considering the primary consideration of “protection of the Australian community”. They will be set out in full later in these reasons, but it may presently be noted that paragraph 8.1(2) required decision-makers to give consideration to (a) the “nature and seriousness of the non-citizen’s conduct to date”; and (b) “risk to the Australian community should the person commit further offences or engage in other serious conduct”. Paragraph 9 had the heading, “Other considerations”. Paragraph 9(1) provided:(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):a)legal consequences of the decision;b)extent of impediments if removed;c)impact on victims;d)impact on Australian business interests Paragraph 9.2 provided:9.2 Extent of impediments if removed(1)Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:a)the non-citizen’s age and health;b)whether there are substantial language or cultural barriers; andc)any social, medical and/or economic support available to them in that country.The Tribunal’s decision The appellant was born in 1993 in the Gambela region of Ethiopia. He is of Anuak ethnicity. The appellant’s mother died and his father was killed when the appellant was a child. The appellant fled to Kenya with members of his extended family in 2003, during a time when Anuak people were being massacred in the Gambela region. The appellant was granted a Refugee visa and arrived in Australia in 2008 at the age of 15. It is apparent from the evidence that the appellant has significant mental health problems, including post-traumatic stress disorder and drug-induced psychosis. The appellant has a lengthy criminal history in Australia. On 3 August 2021 in the Magistrates Court of Queensland, he was convicted, relevantly, of two counts of entering premises and committing an indictable offence and sentenced to concurrent sentences of 12 months’ imprisonment. On 7 April 2022, a delegate of the Minister made a decision under s 501(3A) of the Act to cancel the appellant’s visa (the cancellation decision).