CPJ16 v Minister for Home Affairs

CPJ16, a citizen of New Zealand, sought judicial review of a decision by the Minister for Home Affairs to set aside a decision of the Administrative Appeals Tribunal (AAT) and refuse her application for a protection visa. The applicant entered Australia on a false passport in 2009 and was taken into immigration detention when this was discovered. After absconding, she was detained again in 2015 and applied for a protection visa, claiming that an ex-partner had put out a contract to have her killed due to a belief that she had betrayed him to police. The Minister exercised his power under s 501A(3) of the Migration Act 1958 (Cth) to override the AAT’s decision and refused her application, finding that she did not pass the character test. The applicant challenged this decision in court.

The court considered whether the Minister’s exercise of power under s 501A(3) was lawful, whether it was unreasonable for the Minister to find that the applicant failed the character test, and whether the applicant’s detention was unlawful due to the International Covenant on Civil and Political Rights. The court noted that the Minister’s decision closely followed a previous decision, but found that the Minister was entitled to exercise his power under s 501A(3). The court held that the Minister’s finding that the applicant did not pass the character test was not unreasonable, given her extensive criminal history and the risk of engaging in criminal conduct in Australia. The court also held that the applicant’s detention was not unlawful under the Covenant, as there were no exceptional circumstances that would make her detention arbitrary.

The court dismissed the applicant’s application for relief in relation to her allegations of bad faith/misfeasance in office in paragraph 9 of her amended originating application filed on 31 July 2020 and ordered that her amended originating application filed on 31 July 2020 be otherwise dismissed. The Minister’s costs of the application to the date of these orders were reserved, pending resolution of the misfeasance claim.