Chol v Minister for Immigration
[2018] FCCA 306
•2 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHOL v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 306 |
| Catchwords: MIGRATION – Cancellation of visa – judicial review of decision to cancel and decision not to revoke cancellation – whether s.501(3A) of the Migration Act 1958 (Cth) is invalid because it purports to vest the judicial power of the Commonwealth in a person other than a Chapter III Court – whether the decision not to revoke cancellation was invalid due to a misunderstanding of the law regarding protection visa applications – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.501, 501CA Other materials cited: |
| Cases cited: BCR16 v Minister for Immigration & Border Protection (2017) 248 FCR 456; [2017] FCAFC 96 Falzon v Minister for Immigration & Border Protection [2017] HCATrans 230 Minister for Immigration & Border Protection v BCR16 [2017] HCATrans 240 |
| Applicant: | BOUTROS CHOL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ALEX HAWKE MP IN HIS CAPACITY AS THE ASSISTANT MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 565 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 21 November 2017 |
| Date of Last Submission: | 28 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 2 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Nesbeth |
| Solicitors for the Applicant: | Nikjoo Lawyers |
| Counsel for the First Respondent: | Mr C Lenehan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 565 of 2017
| BOUTROS CHOL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ALEX HAWKE MP IN HIS CAPACITY AS THE ASSISTANT MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Sudan. He fled from Sudan to Egypt with his family and arrived in Australia in 1999 when he was 15 years old. The applicant held a Class BA Subclass 202 Global Special Humanitarian visa.
On 19 December 2013, the applicant was sentenced in the District Court of New South Wales to a term of imprisonment for a minimum of 2 years and a maximum of 4 years in respect of a conviction on 2 counts of robbery in company. On 23 April 2015, the applicant’s visa was cancelled by the Minister for Immigration under s.501(3A) of the Migration Act 1958 (Cth) (Act) in light of his criminal record.
On the same day, the applicant was invited to make representations to the Minister about revocation of the cancellation decision. On 29 May 2015, the applicant made representations to the Minister for revocation of the cancellation. Amongst the matters raised by the applicant in his representations was that his father had been in gaol in Sudan for political reasons and that the applicant’s life could be in danger. He also said that he feared revenge by the people whose families had been harmed by his father and that he could be forced to join the military.
On 18 January 2017, the second respondent made a decision not to revoke the decision to cancel the applicant’s visa.
The applicant seeks judicial review of both the decision to cancel the applicant’s visa and the decision not to revoke that decision.
The second ground is that the decision to cancel was invalid and, as a consequence, so too was the decision not to revoke. The applicant argues that the cancellation decision is invalid because the section under which it was made, s.501(3A) of the Act, is invalid because it purports to vest the judicial power of the Commonwealth in a person other than a Chapter III Court. That same argument was heard by the High Court on 14 November 2017 in the matter of Falzon v Minister for Immigration & Border Protection [2017] HCATrans 230 and judgment was reserved.
On 7 February 2018, the High Court handed down its decision in Falzon v Minister for Immigration & Border Protection [2018] HCA 2. The Court unanimously dismissed the application finding that s.501(3A) of the Act was not invalid. For that reason, the second ground must fail.
The other ground in the application addresses only the revocation decision. It relies on the decision of the Full Court of the Federal Court in BCR16 v Minister for Immigration & Border Protection (2017) 248 FCR 456; [2017] FCAFC 96 (BCR16). In brief, the Full Court in that case held, by majority, that a decision not to revoke a cancellation decision was invalid as a consequence of a misunderstanding of the law concerning applications for protection visas. The Minister’s application to the High Court for special leave to appeal from that decision was refused: Minister for Immigration & Border Protection v BCR16 [2017] HCATrans 240. Nevertheless, the Minister maintained a formal argument that the decision was wrong. Whether that is so must be decided by another court.
The Minister also argued that BCR16 was not applicable in the circumstances of this case. In order to determine that question, it is necessary to examine the reasons of the majority in BCR16. Before turning to that case, it is first necessary to consider the relevant statutory provisions.
Relevant statutory provisions
Section 501(3A) of the Act obliges the Minister to 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.
Relevantly, a person fails the character test because of the operation of sub-s.501(7)(c) of the Act if the person, like the applicant in this case, has been sentenced to a term of imprisonment of 12 months or more.
If the Minister makes a decision under s.501(3A) to cancel a person’s visa, the Minister must give the person notice of the decision and invite the person to make representations to the Minister about revocation of the decision: s.501CA(3). The Minister may revoke the decision under s.501CA(4) if the person has made representations and the Minister is satisfied either that:
a)the person passes the character test in s.501(6); or
b)there is another reason why the decision should be revoked.
If the Minister revokes the cancellation decision, that decision is taken not to have been made: s.501CA(5) of the Act.
BCR16 v Minister for Immigration & Border Protection
The visa of the appellant in BCR16 was cancelled by the Minister under s.501(3A) of the Act and the appellant was invited to make representations about revocation of that decision. In his application for revocation of the cancellation decision, the appellant referred to the civil war and the dangers and violence associated with it. He submitted that he would be killed by insurgents and militants as an Alawite.
In the briefing note prepared for the purpose of considering whether to revoke the cancellation, these submissions were only referred to at the level that they “may give rise to international non-refoulement obligations.” It was noted that the appellant was not prevented from applying for a protection visa. The majority (Bromberg and Mortimer JJ) observed that the appellant did not “refer to Australia’s non-refoulement obligations in terms.”[1]: [11]. Clearly enough, though, if it were accepted that the appellant faced death in his country of nationality for reason of his religion he would be well on the way to establishing that he was owed a non-refoulement obligation under the Refugees Convention[2].
[1] Emphasis added.
[2] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967).
The Assistant Minister decided not to revoke the cancellation. In her reasons for that decision at [19], the Assistant Minister made the following statement:
[the appellant] has made claims that may give rise to international non-refoulement obligations. However [the appellant] is able to make a valid application for another visa. In particular I note that [the appellant] is not prevented by s501E of the Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to [the appellant] for the purposes of this decision.
[The insertions in square brackets replace the appellant’s name.]
The appellant contended, first, that his claims were not restricted to non-refoulement obligations and that the Assistant Minister did not address them; and secondly, that [19] of the Assistant Minister’s reasons was wrong in fact and law. The majority accepted both arguments.
Justices Bromberg and Mortimer found that the Assistant Minister had wrongly considered that non-refoulement obligations would necessarily be considered in the event that the appellant was to make an application for a protection visa: [66]-[67]. The reasons for that conclusion were explained earlier in their Honours’ reasons.
First, they explained that, while the assessment of non-refoulement obligations was required by one of the criteria for the grant of a protection visa, it was not necessarily considered at all. That is because a visa must be refused unless the Minister is satisfied that all of the criteria for the grant of that visa are satisfied and there is no order in which the criteria must be considered. Further, whether the Minister would consider the non-refoulement criteria first was not established as a fact: see [36]-[47].
Secondly, their Honours explained that the exercise involved in considering the criteria for the grant of a visa is qualitatively different from what is involved in the discretionary decision whether or not to revoke a visa: [48]-[51]. That means that the nature and quality of the risks which can permissibly be considered, and the weight which may be given to them, are different in the exercise of the two different powers.
Their Honours also found that this misunderstanding led the Assistant Minister into jurisdictional error: [60]-[70]. The error was not a failure to consider a mandatory consideration ([61]). Rather, the error was characterised as either a denial of procedural fairness or a failure to carry out the task required under s.501CA(4) of the Act: [62].
The error was revealed in the Assistant Minister’s linkage between her refusal to consider the “reason” put to her by the appellant and the way in which the Act will operate if a protection visa application were made: [60]. The Assistant Minister’s characterisation of that “reason” as an international non-refoulement obligation was also “incorrect, and an incomplete and inaccurate description of what the appellant was putting forward as a “reason” for the purposes of the exercise of the power in s 501CA(4)”: [60].
Central to the majority’s reasons was the requirement in s.501CA(4) of the Act that the Minister be satisfied of one of two matters. One of those being that there was “another reason” for revoking the cancellation decision.
The Minister submitted, and I accept, that the Assistant Minister’s misunderstanding of the operation of the Act in relation to the consideration of an application for a protection visa did not, of itself, constitute jurisdictional error. Rather, it was the link between that misunderstanding and, alternatively, the mischaracterisation of those claims and the failure to consider the appellant’s claims that constituted jurisdictional error.
Did the errors identified in BCR16 arise here?
Paragraph [19] of the Assistant Minister’s reasons for decision here are relevantly identical to [19] of the reasons in BCR16. Here, the Assistant Minister wrote:
19.Mr CHOL has made claims that may give rise to international non-refoulement obligations. However Mr CHOL is able to make a valid application for another visa. In particular I note that Mr CHOL is not prevented by s501E of the Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to Mr CHOL for the purposes of this decision.
The difference here however, is that the Assistant Minister went on to consider the claims made by the applicant about what might occur if he were returned to Sudan. Under the heading “Extent of impediments if removed”[3] the Assistant Minister explained, at [32], that he had “had regard to the impediments that Mr CHOL will face if removed from Australia to his home country of Sudan in establishing himself and maintaining basic living standards”.
[3] Emphasis in original.
Next, after considering a number of other matters raised by the applicant, the Assistant Minister directly addressed the matters that the applicant had said caused him to fear returning to the Sudan (and so might fall within a claim to be owed non-refoulement obligations):
39.He has also expressed concern about being forced to join the military if he were returned to Sudan.
…
41.I have also given consideration to Mr CHOL’s fears for his life and safety if returned to Sudan as a result of his father’s political activities and continued instability in the country. Mr CHOL has stated he is fearful he could be arrested or killed because of his connection to his father who was responsible for killing people as part of his rebel activities. Mr CHOL has stated the family members of the people his father killed still live in his area of Sudan and some of them hold high positions in government, with him fearing he could be arrested or killed in revenge for his father’s actions. He has stated his father, Isaac Chol (aged 59), went to prison in Sudan and Mr CHOL had not had any contact with his father since his parents separated when he was aged two.
…
45.Having consideration to the above information, I find Mr CHOL will experience considerable emotional, practical and physical hardship if he is removed from Australia and returned to Sudan. I have come to this conclusion having reference to his length of time in Australia, lack of knowledge of the language and culture, his lack of family or social support in Sudan, Sudan’s status as a developing country and the reduced level of services provided to citizens as compared to Australia and his fears for his safety on his return.
In his conclusion, the Assistant Minister stated that he had reached his decision after “full consideration” ([81]) of all of the matters including the “significant impediments [the applicant] faces in returning to Sudan”: [80].
These reasons disclose two relevant matters. The first is that the Assistant Minister misunderstood the process of considering applications for protection visas under the Act but that that misunderstanding did not lead him to fail to consider the applicant’s claims concerning what might occur to him on return to Sudan. Secondly, the Assistant Minister did not act on an incorrect, and an incomplete and inaccurate description of what the applicant was putting forward as a “reason” for the purposes of the exercise of power under s.501CA(4) of the Act. For those two reasons, the Assistant Minister did not fall into the errors identified by the majority in BCR16. This ground must be rejected.
Conclusion
The applicant has failed to establish any jurisdictional error in either of the impugned decisions. The application must be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 2 March 2018
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