CWGF v Minister for Home Affairs

Case [2019] FCA 1802

FEDERAL COURT OF AUSTRALIA

CWGF v Minister for Home Affairs [2019] FCA 1802

Review of: Application for judicial review of a decision of the Administrative Appeals Tribunal dated 19 February 2019 delivered by Senior Member BJ Illingworth
File number: NSD 481 of 2019
Judge: GLEESON J
Date of judgment: 7 November 2019
Catchwords: MIGRATION – application for judicial review of Tribunal decision not to revoke mandatory cancellation of the applicant’s visa – whether the Tribunal failed to give proper, genuine and realistic consideration to legal consequences of decision – where Tribunal did not identify circumstances where it would become “reasonably practicable” to remove the applicant – where Tribunal did not consider the likely significant harms consequent upon the applicant’s refoulement – Tribunal decision set aside  
Legislation: Migration Act 1958 (Cth) ss 48B, 197AA, 197C, 198, 476A, 499, 501(3A), 501CA(4)(b)(ii)
Cases cited:

AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27

BKS18 v Minister for Home Affairs [2018] FCA 173

DGBK v Minister for Home Affairs [2019] FCA 1479

DMH16 v Minister for Immigration and Border Protection [2017] FCA 448

Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216

FRH18 v Minister for Home Affairs [2018] FCA 1769

He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41

HVLCv Minister for Home Affairs [2019] FCA 616

Minister for Immigration vSingh [2014] FCAFC 1; (2014) 231 FCR 437

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

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

NKWF v Minister for Home Affairs [2018] FCA 409

Omar v Minister for Home Affairs [2019] FCA 279

Date of hearing: 2 July 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 54
Counsel for the Applicant: I Chatterjee
Solicitor for the Applicant: Human Rights for All
Counsel for the First Respondent: CL Lenehan with AL Oakes
Solicitor for the First Respondent: Sparke Helmore

ORDERS

NSD 481 of 2019
BETWEEN:

CWGF

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

GLEESON J

DATE OF ORDER:

7 NOVEMBER 2019

THE COURT ORDERS THAT:

1.The application for judicial review be allowed.

2.The decision of the second respondent dated 19 February 2019 be set aside.

3.The second respondent determine the applicant’s application for review dated 30 November 2018 according to law.

4.The first respondent pay the applicant’s costs of the application.

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


REASONS FOR JUDGMENT

GLEESON J:

  1. This is an application for judicial review of a decision of the second respondent (Tribunal) dated 19 February 2019 affirming a decision of a delegate of the Minister for Home Affairs (Minister) not to revoke the mandatory cancellation of the applicant’s visa. The Court’s jurisdiction…

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Details
AGLC
CWGF v Minister for Home Affairs [2019] FCA 1802
Case
[2019] FCA 1802
Decision Date

CaseChat Overview and Summary

In the case of CWGF v Minister for Home Affairs, the applicant, an Iranian citizen, sought judicial review of a decision by the Tribunal not to revoke the mandatory cancellation of his visa. The applicant argued that the Tribunal failed to properly consider the legal consequences of its decision, including the potential for removal to Iran or indefinite detention. The applicant contended that the Tribunal did not identify circumstances where it would become "reasonably practicable" to remove him and did not consider the significant harms consequent upon his refoulement.

The legal issues before the court included whether the Tribunal failed to give proper, genuine, and realistic consideration to the legal consequences for the applicant of a refusal to revoke the cancellation of his visa, and whether the Tribunal's decision was flawed due to its failure to consider the likely significant harms of refoulement. The court considered the relevant statutory provisions, including s 197C and s 198(2A) of the Act, which outline the obligation to remove an unlawful non-citizen as soon as reasonably practicable and the irrelevance of Australia's non-refoulement obligations in such cases.

The court found that the Tribunal did not adequately consider the likely significant harms of refoulement, including the possibility of indefinite detention. The Tribunal's focus on the seriousness of the applicant's criminal offending and other factors did not adequately weigh the potential harms of refoulement. The court held that the Tribunal's decision was flawed and set it aside, ordering the Minister to reconsider the applicant's application for review according to law. The court also ordered the Minister to pay the applicant's costs of the application.

Orders

Orders of the court

1. The application for judicial review be allowed.

2. The decision of the second respondent dated 19 February 2019 be set aside.

3. The second respondent determine the applicant’s application for review dated 30 November 2018 according to law.

4. The first respondent pay the applicant’s costs of the application.

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

Background

Background to the litigation

The applicant’s principal contention is that the Tribunal failed to give proper, genuine and realistic consideration to the legal consequences for the applicant of a refusal to revoke the cancellation of his visa. The applicant identified these consequences as including possible removal to Iran or indefinite detention.BACKGROUND The applicant is an Iranian citizen who arrived in Australia in September 2012 at the age of 29 years. On 4 January 2013, the applicant was granted a protection visa. The protection visa was mandatorily cancelled on 5 April 2017 pursuant to s 501(3A) of the Act, on the grounds that the applicant did not pass the character test because he had been sentenced to a term of imprisonment of at least 12 months and was serving a term of imprisonment on a full time basis. Since his release from prison, the applicant has been held in immigration detention. On 3 April 2018, the applicant made representations seeking revocation of the cancellation decision, relying on s 501CA(4)(b)(ii) of the Act. The applicant conceded that he did not meet the character test. On 28 November 2018 the Minister refused to revoke the cancellation decision. On 30 November 2018, the applicant applied to the Tribunal for review of the delegate’s decision. The applicant’s situation is affected by s 197C and s 198(2A) of the Act. Those provisions state:197C Australia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198(1)For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.(2)An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.198 Removal from Australia of unlawful non-citizens…(2A)An officer must remove as soon as reasonably practicable an unlawful non-citizen if:(a) the non-citizen is covered by subparagraph 193(1)(a)(iv); and(b)since the Minister’s decision (the original decision) referred to in subparagraph 193(1)(a)(iv), the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and(c)in a case where the non-citizen has been invited, in accordance with section 501C or 501CA, to make representations to the Minister about revocation of the original decision–either:(i)the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or(ii)the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the original decision.Note: The only visa that the non-citizen could apply for is a protection visa or a visa specified in regulations under section 501E. The applicant is barred from applying for any further substantive visas under the Act, by reason of the combined operation of s 48A and s 501E.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Minister did not dispute that s 198(2A) applies to the applicant and contended that the Tribunal expressly considered the effect of the obligation to remove imposed by s 198.TRIBUNAL’S DECISION There is no dispute that, in reviewing the delegate’s decision, the Tribunal was required by s 499(2A) of the Act to apply Ministerial Direction No 65 (Direction), issued on 22 December 2014. From [19] of its decision record, the Tribunal set out relevant aspects of the Direction. From [25], the Tribunal addressed the “primary considerations” identified by the Direction, namely, protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia and the expectations of the Australian community. The applicant does not challenge the Tribunal’s conclusions in relation to these “primary considerations”, which were:(1)There is a substantial risk that the applicant will engage in harmful behaviour if released into the community. Given the serious nature of his offending to date, and the trend in increasing seriousness, this is an unacceptable risk to the community and weighs heavily against any revocation of the cancellation decision ([65] of decision record).(2)The best interests of the applicant’s minor children in Australia was a matter on which the Tribunal placed only slight weight in favour of the applicant ([80] of decision record).(3)Given the nature and seriousness of the offending, accompanied by the applicant’s extensive drug and alcohol abuse, the Australian community would expect the visa to be cancelled ([89] of decision record). The Tribunal placed great weight on this consideration in favour of the Minister’s contention that the cancellation decision should not be revoked. At [90] of the decision record, the Tribunal identified other considerations which it was required to take into account by the Direction including, relevantly “[i]nternational non-refoulement obligations”. From [92]-[103], the Tribunal addressed this issue. At [92], the Tribunal stated that para 14.1 of the Direction “provides a list of factors to be considered in determining international non-refoulement obligations”. More accurately, para 14.1 sets out matters relevant to considering international non-refoulement obligations for the purpose of deciding whether to revoke the mandatory cancellation of a visa. The Tribunal set out para 14.1 in full, including para 14.1(2) and para 14.1(6), which stated:14.1(2)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists. ...14.1(6)… Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of section 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

Ratio Decidendi

Legal Principle Established

Paragraphs [93]-[103] of the Tribunal’s decision record are as follows:93. It is conceded by the [Minister] that the Applicant is a person to whom Australia owes protection and that he is likely to suffer significant harm if returned to Iran.94. The Applicant, in his 2013 application, has already been assessed as a person to whom Australia owes protection. However, this does not preclude the non-revocation of the mandatory visa cancellation.95. It is therefore argued by the Applicant that where the Applicant is not returned to Iran, this would constitute refoulement [sic], as detention is likely to be indefinite given the Respondent has not made it clear how [the] Respondent plans to comply with the statutory obligations. The relevant statutory obligations are as follows:[The Tribunal set out s 197C and s 198(2A)]96. Prior to the existence of s 197C of the Act, an unlawful non-citizen in respect of whom Australia owed non-refoulement obligations faced the prospect of indefinite detention. The Applicant argues that, following the introduction of s 197C of the Act, there is no power in the Act that permits indefinite detention, and therefore Direction 65 is inconsistent with the Act and should not be applied in so far as it says that the existence of non-refoulement obligations do not preclude non-revocation of the mandatory visa cancellation. The Applicant further submits that the prospect of indefinite detention should be properly considered as it is not good government and falls foul of international treaties. 97. The Respondent has, in short, submitted that the duty to remove a person from Australia only arises if it is reasonably practical [sic] to do so. The Tribunal agrees with this submission. The period of detention is fixed until it is reasonably practicable to remove a person and, even where removal appears unlikely to be achievable within a foreseeable period, it does not mean that the removal cannot be implemented at some time in the future. The Tribunal notes that in the Second Reading speech for the Bill introducing s 197C in 2014, the Minister stated ‘The government…rather seeks to be able to effect removals in a timely manner once the assessment of the applicant’s protection claims have been concluded’.98. The Respondent further submits that the applicant may still be able to apply for a protection visa in the future pursuant to s 48B off the Act, may be the subject of a residence determination pursuant to s 197AA of the Act, or may be re-settled to a third country. Therefore, the Tribunal finds that the operation of ss 189 and 196 of the Act do not mean that if the mandatory visa cancellation is not revoked that the Applicant would necessarily face the prospect of indefinite detention.99. In considering these other options, the Minister [sic – the Minister’s delegate] has had regard to other management options in determining whether or not to affirm the mandatory visa cancellation. The Minister has also had regard to the consequence that the Applicant may be in immigration detention for an indefinite or indeterminate period of time.100. The Tribunal has had regard to the existence of the non-refoulement obligation and has weighed this factor against the seriousness of the Applicant’s criminal offending and other factors in making the decision. In particular, they include:(a)The nature and increasing seriousness of the Applicant’s criminal offending, including abuse of drugs and alcohol when offending and generally;(b)The Applicant’s disregard to Australian law generally, and orders of various courts including the contravention of the family violence intervention orders;(c)The Applicant’s attitude towards police in the community, and his contention that the police fabricated evidence against him in his criminal charges; and (d)The Applicant’s reported attitude towards authority whilst imprisoned and in immigration detention.Conclusion: Other Consideration 1101. The Tribunal accepts that the Applicant and members of his family may be adversely affected if the Applicant is subjected to an indefinite or indeterminate period of detention.102. While it is not in contention that the Applicant is a person to whom Australia has non-refoulement obligations, the Tribunal finds the risk to the Australian community outweighs the concerns he has expressed about returning to Iran.103. Having regard to the whole of the evidence before the Tribunal, this is a consideration that should be given limited weight in the Applicant’s favour, but not heavily so. The Tribunal finds this other consideration weighs slightly in favour of the revocation of the cancellation of the Applicant’s visa, but is not [sic] outweighed by the primary considerations weighing heavily against revocation.