CCF20 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

CCF20 v Minister for Home Affairs [2020] FCA 676

File number: VID 97 of 2020
Judge: KERR J
Date of judgment: 20 May 2020
Catchwords: MIGRATION – visa cancellation on character grounds – application for review of decision by Minister not to revoke visa cancellation pursuant to s 501CA(4) of the Migration Act 1958 (Cth) – whether failure to give meaningful consideration to substantial and clearly articulated representations concerning risk of harm if applicant returned to Somalia – construction of Minister’s reasons – where Minister expressly accepted his Department’s conclusion reached in an earlier International Treaties Obligation Assessment (ITOA) that Applicant was owed non-refoulement obligations – whether in accepting that conclusion the Minister also implicitly accepted and adopted  the findings of fact his Department had made –  principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 applied – where ITOA had refrained from making findings with respect to the Applicant’s claim that there was a real risk that he would be killed if returned to Somalia because of his father’s role in the former government of Somalia – Minister failed to afford that representation meaningful consideration – application upheld
Legislation: Migration Act 1958 (Cth) ss 48A, 501(3A), 501CA(3)(b), 501CA(4),
Cases cited:

BAL19 v Minister for Home Affairs [2019] FCA 2189

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280

Hands v Minister for Immigration [2018] FCAFC 225; 267 FCR 628

Hernandez v Minister for Home Affairs [2020] FCA 415

Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320

Minister for Home Affairs v Omar [2019] FCAFC 188

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259

Date of hearing: 11 May 2020
Date of last submissions: 18 May 2020
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 124
Counsel for the Applicant: Mr A White
Solicitor for the Applicant: Victoria Legal Aid
Counsel for the Respondent: Mr G Hill
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 97 of 2020
BETWEEN:

CCF20

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:

KERR J

DATE OF ORDER:

20 MAY 2020

THE COURT ORDERS THAT:

1.The decision of the Respondent made on 15 January 2020 not to revoke the cancellation of the Applicant’s visa be set aside.

2.The Respondent determine the Applicant’s application for revocation of the decision to cancel his visa pursuant to s 501CA of the Migration Act 1958 (Cth) according to law.

3.The Respondent pay the Applicant’s costs of the proceeding, as agreed or assessed.

4.The interim suppression order made on 11 May 2020 be revoked and substituted for by an order that pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), in order to protect his safety the name of the Applicant is to be replaced with…

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Details
Case
[2020] FCA 676
Decision Date

CaseChat Overview and Summary

In the case of CCF20 v Minister for Home Affairs, the applicant, CCF20, sought judicial review of a decision by the Minister for Home Affairs not to revoke the cancellation of his visa. The primary issue for the Court was whether the Minister had failed to give meaningful consideration to the applicant's representations concerning the risk of harm if he were to be returned to Somalia. The applicant argued that the Minister had not adequately considered his claim that there was a real risk that he would be killed if returned to Somalia due to his father's role in the former government of Somalia. The Court needed to determine if the Minister had implicitly accepted and adopted the findings of fact made by his Department in an earlier International Treaties Obligation Assessment (ITOA) concerning the applicant's risk of harm.

The Court found that the Minister had expressly accepted the conclusion of the ITOA that Australia owed the applicant non-refoulement obligations. However, the Minister had failed to afford meaningful consideration to the applicant's representation concerning the risk of harm if returned to Somalia. The Court applied the principle from Minister for Immigration and Ethnic Affairs v Wu Shan Liang, which held that where the Minister accepts a conclusion reached by his Department, he also implicitly accepts and adopts the findings of fact made by the Department. Since the ITOA had refrained from making findings with respect to the applicant’s claim of a real risk of being killed if returned to Somalia, the Court concluded that the Minister's decision not to revoke the visa cancellation was flawed. Consequently, the Court set aside the decision and remitted the matter for determination according to law by a person other than the Minister.

The Court's orders included setting aside the Minister's decision not to revoke the cancellation of the applicant's visa, directing the Minister to determine the applicant's application for revocation of the visa cancellation according to law, and requiring the Minister to pay the applicant's costs of the proceeding. Additionally, the Court revoked the interim suppression order and substituted it with an order to protect the applicant's safety by using a pseudonym in the published reasons of the Court.

Orders

Orders of the court

1. The decision of the Respondent made on 15 January 2020 not to revoke the cancellation of the Applicant’s visa be set aside.

2. The Respondent determine the Applicant’s application for revocation of the decision to cancel his visa pursuant to s 501CA of the Migration Act 1958 (Cth) according to law.

3. The Respondent pay the Applicant’s costs of the proceeding, as agreed or assessed.

4. The interim suppression order made on 11 May 2020 be revoked and substituted for by an order that pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), in order to protect his safety the name of the Applicant is to be replaced with the pseudonym CCF20 in the published reasons of the Court.

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

On 15 January 2020, the Minister once again decided not to revoke the cancellation of the Applicant’s visa (the non-revocation decision). It is this third decision that is the subject of the present application. On 17 January 2020, the Applicant was notified of the non-revocation decision by letter. On 17 February 2020, the Applicant filed in this Court an originating application for review of the non-revocation decision. The Applicant sought an order quashing the decision, and an order remitting the matter to be determined according to law by a person other than the Minister. APPLICANT’S REPRESENTATIONS The Applicant advanced a number of representations through his legal representatives. Those representations were informed by the ITOA, which was before the Minister. The ITOA concluded that Australia owed the Applicant non-refoulement obligations. The assessor relevantly made the following key findings: Part B – Assessment of Non-refoulement Obligations under the Refugees Convention…Against this background, I consider there is a strong likelihood that [the Applicant] would be exposed to harm by militia groups if he returns to Mogadishu. I consider that he would be specifically targeted for extortion and/or forced recruitment by militia groups as a returning member of the Somali Diaspora who has no connection and no source of livelihood, as well as being a young man of fighting age. I consider there to be a heightened risk of serious harm in this case because of the limited mental health services available and the irregular supply of medication which he would require to manage his psychosis. I am satisfied that, in light of [the Applicant’s] particular circumstances and the absence of any effective State protection in Mogadishu, there is a real chance he will be persecuted for reasons including his membership of the particular social groups of “returning members of the Somali Diaspora” and “young men of fighting age in Somalia”.…For the reasons set out above, I find that [the Applicant] has a well-founded fear of persecution in Somalia for the purposes of the Refugees Convention. … Part C – Assessment of Non-refoulement Obligations under the ICCPR and CAT…I have considered the department’s guidance that the threshold for establishing a real risk of significant harm for the purposes of the complementary protection provisions of the Migration Act is higher than the ‘real chance’ test for the purposes of the Refugees Convention. I have considered, too, that the risk must be personal to [the Applicant]. As outlined in Part B above, I consider that [the Applicant] is particularly vulnerable to extortion and/or forcible recruitment by militia groups in Mogadishu because of his personal circumstances as a mentally unwell young man of fighting age, who has no connections in Somalia and has limited knowledge of Somali society and language. Having reconsidered the country information set out in Part B, Section 4 above, I am satisfied that he would be more likely than not to suffer this significant harm if returned to Mogadishu. I do not consider that an internal flight alternatively is reasonably available to him. (Emphasis added; footnotes omitted).

Ratio Decidendi

Legal Principle Established

On 19 December 2014, a delegate of the Minister cancelled the Applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act). The basis for the cancellation was that the Applicant did not pass the character test as he had a substantial criminal record (s 501(6)(a)), having been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)). On 12 January 2015, the Applicant applied to the Minister for revocation of his visa cancellation under s 501CA(4) of the Migration Act. Section 501CA(4) is in the following terms: (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. On 29 January 2015, the Applicant’s legal representatives made representations on his behalf. On 22 July 2016, the Minister decided not to revoke the cancellation. The Applicant sought judicial review of that decision in the Federal Court of Australia (proceeding VID1228/2016). On 21 July 2017, the Court by consent quashed the Minister’s decision and remitted the matter for determination according to law. On 27 December 2017, the Applicant’s representatives provided further submissions. On 19 June 2018, the Minister again decided not to revoke the cancellation. The Applicant sought judicial review of that decision in this Court (proceeding VID973/2018) for a second time. On 28 February 2019, the Court by consent once again set aside the Minister’s decision and remitted the matter for determination according to law. On 13 June 2019, the Applicant’s representatives again provided further submissions. On 15 January 2020, the Minister once again decided not to revoke the cancellation of the Applicant’s visa (the non-revocation decision). It is this third decision that is the subject of the present application. On 17 January 2020, the Applicant was notified of the non-revocation decision by letter. On 17 February 2020, the Applicant filed in this Court an originating application for review of the non-revocation decision. The Applicant sought an order quashing the decision, and an order remitting the matter to be determined according to law by a person other than the Minister. APPLICANT’S REPRESENTATIONS The Applicant advanced a number of representations through his legal representatives. Those representations were informed by the ITOA, which was before the Minister. The ITOA concluded that Australia owed the Applicant non-refoulement obligations. The assessor relevantly made the following key findings: Part B – Assessment of Non-refoulement Obligations under the Refugees Convention…Against this background, I consider there is a strong likelihood that [the Applicant] would be exposed to harm by militia groups if he returns to Mogadishu. I consider that he would be specifically targeted for extortion and/or forced recruitment by militia groups as a returning member of the Somali Diaspora who has no connection and no source of livelihood, as well as being a young man of fighting age. I consider there to be a heightened risk of serious harm in this case because of the limited mental health services available and the irregular supply of medication which he would require to manage his psychosis. I am satisfied that, in light of [the Applicant’s] particular circumstances and the absence of any effective State protection in Mogadishu, there is a real chance he will be persecuted for reasons including his membership of the particular social groups of “returning members of the Somali Diaspora” and “young men of fighting age in Somalia”.…For the reasons set out above, I find that [the Applicant] has a well-founded fear of persecution in Somalia for the purposes of the Refugees Convention. … Part C – Assessment of Non-refoulement Obligations under the ICCPR and CAT…I have considered the department’s guidance that the threshold for establishing a real risk of significant harm for the purposes of the complementary protection provisions of the Migration Act is higher than the ‘real chance’ test for the purposes of the Refugees Convention. I have considered, too, that the risk must be personal to [the Applicant]. As outlined in Part B above, I consider that [the Applicant] is particularly vulnerable to extortion and/or forcible recruitment by militia groups in Mogadishu because of his personal circumstances as a mentally unwell young man of fighting age, who has no connections in Somalia and has limited knowledge of Somali society and language. Having reconsidered the country information set out in Part B, Section 4 above, I am satisfied that he would be more likely than not to suffer this significant harm if returned to Mogadishu. I do not consider that an internal flight alternatively is reasonably available to him. (Emphasis added; footnotes omitted).