DFTD v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

DFTD v Minister for Home Affairs [2020] FCAFC 207

Appeal from: DFTD v Minister for Home Affairs [2020] FCA 859
File number: VID 435 of 2020
Judgment of: MARKOVIC, DERRINGTON AND THAWLEY JJ
Date of judgment: 26 November 2020
Catchwords: MIGRATION – appeal from a decision of the Federal Court of Australia dismissing the appellant’s application for judicial review – where the Administrative Appeals Tribunal had affirmed a decision of a delegate of the Minister not to revoke under s 501CA(4) of the Migration Act 1958 (Cth) the mandatory cancellation of the appellant’s visa under s 501(3A) – whether the Tribunal was required by paragraph 14.1(2) of Ministerial Direction 79 to take account of Australia’s non-refoulement policy – whether the Tribunal took into account Australia’s non-refoulement policy – appeal dismissed
Legislation: Migration Act 1958 (Cth), ss 197C, 501(3A), 501CA(4)
Cases cited:

Ali v Minister for Home Affairs (2020) 380 ALR 393

AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424

GBV18 v Minister for Home Affairs [2020] FCAFC 17

Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531

Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 24
Date of hearing: 23 November 2020
Counsel for the Appellant: Mr A Aleksov
Solicitor for the Appellant: Victoria Legal Aid
Counsel for the First Respondent: Mr G Hill
Solicitor for the First Respondent: Sparke Helmore Lawyers
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS

VID 435 of 2020
BETWEEN:

DFTD

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

MARKOVIC, DERRINGTON AND THAWLEY JJ

DATE OF ORDER:

26 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs as agreed or taxed.

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


REASONS FOR JUDGMENT

THE COURT:

  1. This appeal concerns the proper construction and effect of paragraph 14.1(2) of Ministerial Direction No 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA. Direction No 79 applied in the appellant’s review under s 500(1)(b) of the Migration Act 1958 (Cth) by the Administrative Appeals Tribunal of a decision of a delegate of the Minister for Home Affairs not to revoke, under s 501CA(4), a mandatory cancellation of the appellant’s visa under s 501(3A).

  2. The appeal is from a decision of a judge of this Court in its original jurisdiction on judicial review under s 476A of the Act of the Tribunal’s decision: DFTD v Minister for Home Affairs [2020] FCA 859.

    BACKGROUND

  3. The background facts were set out by the primary judge:

    [1]The applicant is an Indonesian national.  He hails from what is now Indonesia’s West Papua province.  Prior to 2006, he was involved with the Organisasi Papua Merdeka…

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Details
Case
[2020] FCAFC 207
Decision Date

CaseChat Overview and Summary

The case of DFTD v Minister for Home Affairs involves an Indonesian national, DFTD, who had his visa cancelled under the Migration Act 1958 (Cth) due to criminal convictions. DFTD sought judicial review of the decision by the Administrative Appeals Tribunal (AAT) to affirm the Minister's decision not to revoke the visa cancellation. The central legal issues were whether the AAT was required to consider Australia's non-refoulement policy as per paragraph 14.1(2) of Ministerial Direction 79 and whether the AAT appropriately took this policy into account in its decision-making process.

The Federal Court of Australia examined whether the AAT correctly applied Ministerial Direction 79 when it considered the non-refoulement obligations. The court found that the AAT did indeed take into account Australia's non-refoulement policy, despite the appellant's argument that it did not sufficiently consider the potential consequences of refoulement. The Tribunal's reasoning, though perhaps not perfectly articulated, indicated an understanding that a revocation of the visa cancellation could result in the appellant remaining in detention while options were considered in light of Australia's non-refoulement obligations. The court concluded that the AAT was not mandated to ignore the possibility of refoulement, and the Tribunal's consideration of this policy was adequate.

In summary, the Court dismissed the appeal, holding that the Tribunal's decision was legally sound. The appellant was ordered to pay the Minister's costs as per the agreement or as taxed. This decision underscores the importance of considering international obligations in the context of domestic visa cancellation decisions, particularly when they relate to potential refoulement.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs as agreed or taxed.

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

Background

Background to the litigation

The appeal is from a decision of a judge of this Court in its original jurisdiction on judicial review under s 476A of the Act of the Tribunal’s decision: DFTD v Minister for Home Affairs [2020] FCA 859.BACKGROUND The background facts were set out by the primary judge:[1]The applicant is an Indonesian national. He hails from what is now Indonesia’s West Papua province. Prior to 2006, he was involved with the Organisasi Papua Merdeka (or “OPM”), more commonly known (at least throughout the western world) as the Free Papua Movement. Over the years, that movement has attracted the ire of the Indonesian military; so much so that its adherents have been subjected to at least a degree of violent repression. In January 2006, the applicant travelled by boat to Australia in order to escape that threat of violence. In March 2006, he was granted a temporary protection visa under the Migration Act 1958 (Cth) … That visa expired in 2009 and, in November 2011, the applicant was granted a Class SD (Subclass 851) “Resolution of Status” visa [“Visa”]. It was—and remains—uncontentious that the applicant is a person in respect of whom Australia owes obligations of non-refoulement.[2]By a notice issued on 14 October 2016 pursuant to s 501(3A) of the Act, a delegate of the [Minister] decided to cancel the applicant’s Visa. The catalyst for that decision [“Cancellation Decision”] was the applicant’s criminal history. On 7 April 2014, the applicant was convicted of rape, aggravated burglary, indecent assault and theft. He was sentenced to five years’ imprisonment. Those convictions followed convictions in December 2009 for (amongst other things) sexual assault, unlawful stalking and burglary, for which he was sentenced to a total of three-and-a-half years’ imprisonment.[3]In response to an invitation extended to him under s 501CA(3) of the Act, the applicant petitioned for the revocation of the Cancellation Decision. He accepted that he did not pass the “character test” for which s 501(6) of the Act provides; but maintained, nonetheless, that there were other reasons why the Cancellation Decision should be revoked pursuant to s 501CA(4) of the Act.[4]On 13 December 2018, a delegate of the [Minister] decided that the Cancellation Decision should not be revoked. The applicant applied to the [Tribunal] for a review of that decision. That application also failed: on 7 March 2019, the Tribunal affirmed the delegate’s decision not to revoke the cancellation of his Visa. … Given the confined scope of this appeal, it is only necessary to refer to limited aspects of the Tribunal’s decision. The Tribunal addressed and considered the ‘primary considerations’ and ‘other considerations’ provided for in Direction No 79 in a way which is not challenged except in respect of paragraph 14.1(2). The Tribunal correctly recognised that it must “comply” with Direction No 79 by reason of s 499(2A) of the Act: T[19]. In the context of submissions on the primary consideration of “expectations of the Australian community”, the appellant submitted to the Tribunal that “the potential consequences of the cancellation of his visa, namely the removal to Indonesia where his life was at risk or indefinite detention, are so significant and disproportionately punitive” that the Australian community would expect the visa cancellation to be revoked.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal did take account of Australia’s non-refoulement policy. Not only did it set out the terms of paragraph 14.1 of Direction No 79, but it stated at T[87] that the direction “refers to a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they are at a risk of a specific type of harm”. It stated at T[97] that it had “a duty to consider non-refoulement regardless of [the appellant’s] ability to apply for a protection visa”. Whilst the reasons could have been better expressed, the preferable understanding of the Tribunal’s decision is that the Tribunal took into account that, if the mandatory cancellation decision were not revoked, it was likely that the appellant would remain in detention whilst options were considered in light of Australia’s non-refoulement policy. The Tribunal also recognised that a possible result of its decision was that the appellant might be refouled to West Papua in breach of Australia’s non-refoulement obligations. The Tribunal was not obliged by paragraph 14.1(2) to proceed on the basis that this was not a possible outcome. It clearly was, by reason of s 197C.CONCLUSION For these reasons the appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

The Tribunal commenced its discussion of “international non-refoulement obligations” in the following way: Other considerationsInternational non-refoulement obligations[87]Paragraph 14.1 of the Direction refers to a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they are at a risk of a specific type of harm (para 14.1(1)). Paragraph 14.1 further provides: (1)A non-refoulement obligation is an obligation not to forcibly return, deport o[r] expel a person where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT) and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act[.](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.(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.(5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).(6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. 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 sections 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.