Daf18 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

DAF18 v Minister for Home Affairs

[2018] FCA 1367

File number: NSD 984 of 2018
Judge: RARES J
Date of judgment: 27 August 2018
Catchwords: MIGRATION – judicial review – whether Minister’s decision not to revoke cancellation decision pursuant to Migration Act 1958 (Cth) s 501CA(4) affected by jurisdictional error by failing to take into account relevant considerations – where applicant’s visa cancelled on character grounds under s 501(3A)
Legislation: Migration Act 1958 (Cth) ss 501, 501CA
Cases cited:

Al-Kateb v Godwin (2004) 219 CLR 562

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Date of hearing: 27 August 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 36
Counsel for the Applicant: The applicant appeared in person assisted by an interpreter
Counsel for the Respondent: Ms R Francois
Solicitor for the Respondent: Mills Oakley Lawyers

ORDERS

NSD 984 of 2018
BETWEEN:

DAF18

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:

RARES J

DATE OF ORDER:

27 AUGUST 2018

THE COURT ORDERS THAT:

1.The proceedings be dismissed.

2.The applicant pay the respondent’s costs.

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


REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

RARES J:

  1. On 8 August 2016, a delegate of the Minister decided under s 501(3A) of the Migration Act 1958 (Cth) to cancel the applicant’s humanitarian class XB subclass 202 global special visa. The applicant received notice of the cancellation on 10 August 2016 and through his solicitor migration agent made representations to the Minister on 7 September 2016 seeking that he exercise his discretion under s 501CA(4) of the Act to revoke the original decision.

    Background

  2. The applicant had a substantial criminal record that included sentences for imprisonment totalling more than 12 months. As a result, the Minister was not satisfied that the applicant passed the character test. Therefore one of the alternative bases (in s 501CA(4)(b)(i)) on which he could revoke the cancellation decision could not be met. In his statement of reasons for his decision dated 1 May 2018, the Minister personally then considered whether there was another reason why the original decision should be revoked for the purposes of s 501CA(4)(b)(ii).

    The Minister’s Decision

  3. In his statement of reasons, the Minister said that he assessed all of the information set out in attachments to the Departmental submission, which included the applicant’s extensive criminal history and a number of sentencing remarks for numerous, but not all, of the offences on which he was sentenced.

  4. The Minister said that he had considered the reasons and representations that the applicant had provided as to why the cancellation decision should be revoked, including:

    ·the adverse effect his removal would have on his three Australian minor citizen children who need him to provide the love, care, and stability of a father;

    ·the adverse effect his removal would have on his…

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Details
Case
[2018] FCA 1367
Decision Date

CaseChat Overview and Summary

The case of Daf18 v Minister for Home Affairs involved a legal challenge brought by the applicant, Daf18, against a decision made by the Minister for Home Affairs under the Migration Act 1958 (Cth). The applicant's humanitarian class XB subclass 202 global special visa was cancelled on character grounds. Daf18 sought judicial review of the Minister's decision not to revoke the cancellation decision, arguing that the Minister failed to take into account relevant considerations in making his decision. The Federal Court was tasked with determining whether the Minister's decision was affected by a jurisdictional error.

The primary legal issue the court had to decide was whether the Minister's decision not to revoke the cancellation of Daf18's visa was affected by a jurisdictional error. Specifically, the court had to determine if the Minister failed to take into account relevant considerations in making his decision. The applicant argued that the Minister did not adequately consider the adverse effects of his removal on his family, his contributions to the community, and his remorse and commitment to rehabilitation. The Minister, on the other hand, maintained that he had considered all relevant factors and was not satisfied that there was another reason to revoke the cancellation decision.

The court found that the Minister had considered all the relevant matters put forward by the applicant and his representatives, including the adverse effects on his family and his commitment to rehabilitation. The court held that the Minister's decision-making process did not involve any jurisdictional error. The court emphasised that it was not the role of the judiciary to usurp the Minister's function of making decisions about the revocation or cancellation of visas. The court concluded that the Minister had approached the decision-making process in accordance with the law and dismissed the application with costs.

The court's decision highlighted the limited role of the judiciary in reviewing decisions made by the Minister under the Migration Act. The court reiterated that it was not able to intervene in the manner of detention of stateless persons who cannot be returned to their country of origin, as per the decision in Al-Kateb v Godwin. However, the court noted the disturbing circumstances of the applicant's prolonged detention and separation from his family, and suggested that these issues might be reviewable under other legal frameworks.

Orders

Orders of the court

1. The proceedings be dismissed.

2. The applicant pay the respondent’s costs.

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

Background

Background to the litigation

On 8 August 2016, a delegate of the Minister decided under s 501(3A) of the Migration Act 1958 (Cth) to cancel the applicant’s humanitarian class XB subclass 202 global special visa. The applicant received notice of the cancellation on 10 August 2016 and through his solicitor migration agent made representations to the Minister on 7 September 2016 seeking that he exercise his discretion under s 501CA(4) of the Act to revoke the original decision.Background The applicant had a substantial criminal record that included sentences for imprisonment totalling more than 12 months. As a result, the Minister was not satisfied that the applicant passed the character test. Therefore one of the alternative bases (in s 501CA(4)(b)(i)) on which he could revoke the cancellation decision could not be met. In his statement of reasons for his decision dated 1 May 2018, the Minister personally then considered whether there was another reason why the original decision should be revoked for the purposes of s 501CA(4)(b)(ii).The Minister’s Decision In his statement of reasons, the Minister said that he assessed all of the information set out in attachments to the Departmental submission, which included the applicant’s extensive criminal history and a number of sentencing remarks for numerous, but not all, of the offences on which he was sentenced. The Minister said that he had considered the reasons and representations that the applicant had provided as to why the cancellation decision should be revoked, including:·the adverse effect his removal would have on his three Australian minor citizen children who need him to provide the love, care, and stability of a father;·the adverse effect his removal would have on his Australian citizen wife, who has indicated she is likely to become depressed and suicidal if he were removed from Australia;·his entire extended family is in Australia, they would be willing to provide him with practical support in the community, and would be devastated by his removal;·his contribution to the community through his employment;·he is a stateless person with no right to return to Iraq, and his life would be at risk if he were returned to any part of the Middle East;·he is committed to turning his life around and dedicating himself to supporting his family;·his traumatic upbringing in the Middle East and drug use have contributed to his offending behaviour; and·he is remorseful for his behaviour and intends to complete interventions in the future that will reduce his risk of reoffending. The Minister’s statement then considered those matters. He approached consideration of the best interests of the applicant’s three minor children, who at the time of the decision were aged two, four and five, and his 27-year-old wife, on the basis that he should treat the best interests of those three children as a primary consideration. He concluded that it was in the best interests of the three children for the original decision to be revoked. However, the Minister noted that since the applicant’s first custodial sentence commenced on 25 August 2014, he had spent all but six months in prison or immigration detention, and that that period had covered much of his children’s lives. He noted that the applicant had last been in the community from 1 September 2015 to 15 December 2015 before returning to some form of detention that continued thereafter.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Ultimately the task for the Minister was to evaluate the factors that told in the applicant’s favour and those that told against him in coming to a view as to whether he was satisfied that there was another reason why the original decision should be cancelled. It is not the role of the Court, however, to usurp the Minister’s function that the Parliament has given him under s 501CA(4) to make decisions about the revocation or cancellation of decisions to revoke visas. The role of the Court is to determine whether the Minister has acted in accordance with law in exercising his power to consider whether he is satisfied or not about there being another reason why the original decision should be revoked. Conclusion For the reasons I have given, I am unable to detect any legal error in the way in which the Minister approached the making of the decision under review. Accordingly, the application must be dismissed with costs. Concluding Observations The applicant has been detained for some time in immigration detention in Western Australia or Christmas Island for reasons that are not immediately obvious, given the Minister’s asserted understanding that the best interests of his children would be served by the revocation of the cancellation decision. Clearly, maintaining a stateless person who cannot be refouled to his or her country of citizenship or origin in immigration detention well away from his family and support networks is a matter that may be reviewable for other reasons, in that the manner of detention might cease to have the character of being purely protective and might impose, in those circumstances, a form of punishment. However, by reason of the decision of the majority in Al-Kateb 219 CLR 562, a person in the applicant’s unfortunate position of being stateless and unable to be returned to another country means that this Court, on an application such as this at least, is not able to intervene; cf: Al-Kateb 219 CLR at 584 [44] per McHugh J. It is a matter for the Minister as the Constitutional office holder responsible for the administration of the Act, including the power to detain under ss 189 and 196 persons in immigration detention, as to how and where such detention should occur. Nonetheless, it is disturbing the way that the applicant appears to have been separated from his family who, as the Minister’s counsel acknowledged, were all present in Court today, including his three young children, his wife, and uncle. From what the applicant said today, which is not the subject of this proceeding, he does not appear to have been afforded any treatment for his psychological conditions or assisted with potential rehabilitation to enable him, at some point, to be released into the community if he no longer were to pose the kind of risk that the Minister currently considers exists. I consider that the Registrar should bring these reasons to the Minister’s personal attention.

Ratio Decidendi

Legal Principle Established

The applicant emphasised those matters of his life and the evident traumatic impact they had had on him when he made his oral submissions today, as well as, in his lucid written submissions on his application. The applicant acknowledged, both in his oral and written submissions, that he had offended in the past and that he sincerely regretted this bad behaviour. He said that he had received punishment for his criminal offending, but that he had suffered and was continuing to suffer the effects of the deeply traumatising experiences that he had had as a young man in Iraq and Syria. He asked for the Court to exercise its compassion and give him another chance to seek professional help, rather than being left indefinitely in a detention centre.Consideration The Minister’s discretion under s 501CA(4)(b)(ii) is exercisable where the Minister is satisfied that there is another reason why the original decision should be revoked where, as in this case, the person concerned does not pass the character test. The Minister appears to have taken into consideration all of the matters to which the applicant and his solicitor/migration agent, as well as his uncle, put to the Minister in support of revocation. The Minister also had regard to matters that he considered supported maintaining the cancellation decision itself. The power of the Minister to revoke the decision to cancel the visa is only enlivened if the Minister is satisfied positively that there was another reason why the original decision should be revoked. The Act does not set out any criteria that the Minister must consider when deciding whether he is satisfied that there was another reason why the original decision should be revoked, but, as the Minister noted, he was obliged to, and said that he did, take into account as a primary consideration the best interests of the applicant’s three young children. On the other hand, the Minister was undertaking an evaluative exercise in deciding how to weigh all of the competing factors that affected the applicant and his claim for his visa to be restored. That process of consideration does not appear to me, on the material and submissions, to have involved the Minister committing any jurisdictional error in the way in which he approached his task: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-279 per Brennan CJ, Toohey, McHugh and Gummow JJ. In particular, the Minister expressly acknowledged that the consequence of his decision, were he not to revoke the cancellation decision, would be that the applicant would be likely to be indefinitely detained in immigration detention. That is the legal consequence that the majority of the High Court held does not infringe the judicial power of the Commonwealth and about which the Courts are not able to grant relief: Al-Kateb v Godwin (2004) 219 CLR 562. The Minister, clearly enough, did have regard to, and expressly accepted the fact, that the applicant had suffered the torture and mistreatment that his originating application identified as being the foundation of his challenge to the legal efficacy of the Minister’s decision. The fact that the Minister took those matters into account and, indeed, accepted that they had had a traumatic effect on the applicant, means that those matters cannot be said to be factors that the Minister should have, but did not, take into account in reaching his decision.