BPL20 v Minister for Home Affairs

Case [2020] FCA 1207

FEDERAL COURT OF AUSTRALIA

BPL20 v Minister for Home Affairs [2020] FCA 1207

File number: VID 1255 of 2019
Judgment of: MOSHINSKY J
Date of judgment: 20 August 2020
Catchwords: MIGRATION – mandatory cancellation of a visa under s 501(3A) of the Migration Act 1958 (Cth) – request for revocation of cancellation decision – where Minister for Home Affairs decided not to revoke the cancellation decision – where the applicant in his representations seeking revocation of the cancellation decision relied on his role as the carer for his parents, mental health issues, the potential consequence of non-revocation that he would be separated from his wife, and Australia’s non-refoulement obligations – whether the Minister failed to consider a significant and clearly articulated claim
Legislation: Migration Act 1958 (Cth), ss 5, 36, 501, 501CA
Cases cited:

Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 557

Ali v Minister for Home Affairs [2018] FCA 1693

Ali v Minister for Home Affairs [2020] FCAFC 109

AXT19 v Minister for Home Affairs [2020] FCAFC 32

Carr v Finance Corporation of Australia (No 1) (1981) 147 CLR 246

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352

CKX16 v Minister for Immigration & Anor (No 2) [2020] FCCA 2894

Eastman v Director Public Prosecutions (ACT) (2003) 214 CLR 318

Freeman v Minister for Home Affairs [2019] FCA 408

GBV18 v Minister for Home Affairs [2020] FCAFC 17

Hernandez v Minister for Home Affairs [2020] FCA 415

Ibrahim v Minister for Home Affairs (2019) 270 FCR 12

Minister for Home Affairs v Omar (2019) 373 ALR 569

Minister for Immigration and Citizenship v SZQOT (2012) 206 FCR 145

NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90

Omar v Minister for Home Affairs [2019] FCA 279

Roach v The Queen (2019) 344 FLR 429

SZSJA v Minister for Immigration and Border Protection (2013) 308 ALR 266
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 90
Date of hearing: 22 April 2020
Counsel for the Applicant: Mr M Albert
Solicitor for the Applicant: Carina Ford Immigration Lawyers
Counsel for the Respondent: Mr C Tran
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 1255 of 2019
BETWEEN:

BPL20

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:

MOSHINSKY J

DATE OF ORDER:

20 AUGUST 2020

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the proceeding, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the respondent’s costs.

4.In the absence of any agreement:

(a)within 21 days, the respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)within a further 14 days, the applicant file and serve any Costs Response…

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AGLC
BPL20 v Minister for Home Affairs [2020] FCA 1207
Case
[2020] FCA 1207
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of BPL20 v Minister for Home Affairs involved an application for judicial review of a decision by the Minister for Home Affairs not to revoke the mandatory cancellation of a visa under section 501(3A) of the Migration Act 1958 (Cth). The applicant, BPL20, argued that the Minister erred in his consideration of the applicant's representations, specifically those relating to his role as a carer for his parents, his mental health, and Australia's non-refoulement obligations. The applicant contended that the Minister failed to properly consider these significant claims, which could have influenced the decision to revoke the visa cancellation.

The legal issues in the case centred on whether the Minister properly considered the applicant's representations regarding the expectations of the Australian community, Australia's international non-refoulement obligations, and the process for considering those obligations. The applicant argued that the Minister did not sufficiently engage with the representations made, which amounted to an error of law. The court had to determine if the Minister's failure to adequately consider these claims warranted setting aside the non-revocation decision.

The court examined the Minister's statement of reasons and found that, while the Minister did refer to the representations, he did not engage with them in an active intellectual process as required by law. The court considered previous cases, such as Ali v Minister for Home Affairs, where a similar failure to consider representations led to the setting aside of a decision. However, in this case, the court concluded that the Minister's consideration, though brief, was sufficient to meet legal standards. The court found no error in the Minister's decision not to revoke the visa cancellation and dismissed the application.

The court ordered that the application be dismissed and that the applicant pay the respondent's costs of the proceeding. The court directed the parties to file agreed minutes of orders for the costs or, failing agreement, for the respondent to file a costs summary and the applicant to respond, with the possibility of referring the matter to a Registrar for determination if no agreement was reached.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the proceeding, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3. Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the respondent’s costs.

4. In the absence of any agreement:

(a) within 21 days, the respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b) within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c) in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the respondent’s costs be referred to a Registrar for determination.

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

The applicant requested that the Minister revoke the cancellation decision and made representations in support of that request. On 15 October 2019, the Minister decided not to revoke the cancellation decision. I will refer to the Minister’s decision as the non-revocation decision. By a proceeding commenced in this Court, the applicant seeks judicial review of the non-revocation decision. The applicant relies on three grounds, as set out in his originating application for review of a migration decision:(a)First, that the Minister erred by merely reciting (at [13] of his statement of reasons) and then failing to consider, in the relevant legal sense, a significant and clearly articulated claim raised by the representations made by or on behalf of the applicant on the question of the expectations of the Australian community, namely his role in the care of his parents, who are Australian citizens, are separated, have only one child and are unwell (ground 1).(b)Secondly, the Minister erred by failing to acknowledge (at [16] of his statement of reasons) and consider, in the relevant legal sense, a significant and clearly articulated claim raised by the representations made by or on behalf of the applicant relevant to the question of Australia’s international non-refoulement or statutory protection obligations as “another reason” to revoke the cancellation of the applicant’s visa, namely mental harm to the applicant if he is forced to return to China by reason of his separation indefinitely from:(i)his parents, by reason that they are not Chinese citizens and cannot travel there;(ii)his wife, by reason that she would return to Hong Kong and would only be allowed to visit him in China for short periods with permission of the Chinese government;(iii)the graves of his grandparents, who raised him and who are buried in Melbourne; and(iv)any family members,in light of the applicant’s ongoing, long-term mental illnesses (ground 2).(c)Thirdly, the Minister failed to make any finding (at [16]-[22] of his statement of reasons) on:(i)the question whether the applicant was owed international non-refoulement obligations under the International Covenant on Civil and Political Rights (the ICCPR);(ii)the question whether the applicant was owed protection obligations under s 36(2) of the Migration Act; or(iii)the process by which those obligations would in fact be considered in the case of the applicant (ground 3).At the hearing, the applicant’s counsel indicated that the applicant did not press paragraph (i) within ground 2. For the reasons that follow, in my view none of these grounds is made out. It follows that the application is to be dismissed.Key legislative provisions Section 501 of the Migration Act relevantly provides:(3A) The Minister must cancel a visa that has been granted to a person if:(a)the Minister is satisfied that the person does not pass the character test because of the operation of:(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or(ii)paragraph (6)(e) (sexually based offences involving a child); and(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

Ratio Decidendi

Legal Principle Established

Subsequently, in Ali v Minister for Home Affairs [2020] FCAFC 109 (Ali), the Full Court of this Court (Collier, Reeves and Derrington JJ) set aside a decision of a Minister, purportedly made pursuant to s 501CA(4), not to revoke the cancellation of a visa in circumstances where the Minister did not consider representations made the appellant that if he were returned to Ethiopia, Australia would be in breach of its international non-refoulement obligations. The Full Court considered the structure of s 501CA(4) and held, at [45], that “a failure by the Assistant Minister to consider, by engaging in an active intellectual process, a clearly articulated ground raised in the representations provided by the affected person would amount to an error which may vitiate the putatively formed state of mind”. The Full Court discussed GBV18, Hernandez and Ahmed (see [78]-[85]). In Ali, the appellant’s representations included a contention that, if returned to Ethiopia, the appellant would face serious harm amounting to persecution on the basis of his Oromo ethnicity, and that therefore returning the appellant to Ethiopia would be in breach of Australia’s non-refoulement obligations (see [87]-[88]). The Minister considered it unnecessary to determine whether non-refoulement obligations were owed (see [93]). The Full Court held that the Minister failed to give real and genuine consideration and intellectual attention to the appellant’s representations as to Australia’s non-refoulement obligations (see [95], [99], [103]-[106]).ConsiderationGround 1 The applicant contends that the Minister erred by merely reciting (at [13] of the statement of reasons) and then failing to consider, in the relevant legal sense, a significant and clearly articulated claim (in the applicant’s representations) on the question of the expectations of the Australian community, namely the applicant’s role in the care of his parents, who are Australian citizens, are separated, are unwell and have only one child. The applicant relies, in particular, on [68] of the November 2018 Submission, which has been set out above. The applicant submits that the Minister’s statement of reasons deals only briefly with the expectations of the Australian community (see [13]-[15] of the statement of reasons, set out above). The applicant submits that: nowhere in the Minister’s analysis of the expectations of the Australian community is there any engagement with the submission concerning the applicant’s role as his parent’s primary carer; although the reasons prepared for the Minister state that a contrary submission was made (on the question of the expectations of the Australian community), that submission was not weighed against the Minister’s template reasons concerning the expectations of the Australian community. The applicant submits that the Full Court in Omar concluded that error would arise if a Minister’s reasons merely “noted”, and did not intellectually engage with, a substantial submission: see Omar at [24], [36(f)], [43(a)] and [43(d)].