DFTD v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

DFTD v Minister for Home Affairs [2020] FCA 859

Appeal from: Application for review of a migration decision by the Administrative Appeals Tribunal made on 7 March 2019
File number: VID 377 of 2019
Judge: SNADEN J
Date of judgment: 23 June 2020
Catchwords: MIGRATION – application for review of a migration decision – mandatory cancellation of a visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) – decision of the second respondent (tribunal) not to revoke the cancellation decision – consideration of non-refoulement obligations – prospect of “prolonged” detention – whether the tribunal wrongly failed to take into account the legal consequences of its decision – whether the tribunal wrongly failed to take into account government policy – application dismissed
Legislation: Migration Act 1958 (Cth) ss 5, 55, 189, 197C, 198, 476A, 496, 499, 500, 501, 501CA and 501E
Cases cited:

Ali v Minister for Immigration and Border Protection [2018] FCA 650

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513

BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456

BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352

COT15 v Minister for Immigration and Border Protection (No 1) (2015) 236 FCR 148

Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29

DLJ18 v Minister for Home Affairs [2019] FCAFC 236

Greene v Assistant Minister for Home Affairs [2018] FCA 919

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189

Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523

Minister for Immigration and Broder Protection v Le (2016) 244 FCR 56

NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1

Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146

Date of hearing: 30 October 2019
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 65
Counsel for the Applicant: Mr A Aleksov
Solicitor for the Applicant: Victoria Legal Aid
Counsel for the First Respondent: Mr G Hill
Solicitor for the First Respondent: Sparke Helmore
Solicitor for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ORDERS

VID 377 of 2019
BETWEEN:

DFTD

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

SNADEN J

DATE OF ORDER:

23 JUNE 2020

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs of the application, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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


REASONS FOR JUDGMENT

SNADEN J:

INTRODUCTION

  1. The applicant is an Indonesian national.  He hails from what is now Indonesia’s…

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Details
Case
[2020] FCA 859
Decision Date

CaseChat Overview and Summary

The case of DFTD v Minister for Home Affairs involved an application for judicial review of a decision by the Minister for Home Affairs to not revoke the cancellation of a visa under section 501CA of the Migration Act 1958 (Cth). The applicant, a non-citizen, had his visa cancelled under section 501(3A) of the Act, and he applied for the cancellation to be revoked. The Minister, however, decided not to revoke the cancellation, and this decision was not appealed to the Administrative Appeals Tribunal. Instead, the applicant sought judicial review directly in the Federal Court of Australia. The central issues for the court to decide were whether the tribunal wrongly failed to take into account the legal consequences of its decision and whether it wrongly failed to consider government policy, specifically Ministerial Direction No. 79.

The court held that the tribunal did not err in its decision-making process. It found that the tribunal had appropriately considered the legal consequences of its decision and had not failed to take into account relevant government policy. The court was satisfied that the tribunal had followed the correct legal principles and had exercised its discretion in accordance with the relevant statutory provisions. The court also noted that the applicant had not demonstrated that the tribunal's failure to revoke the visa cancellation resulted in a breach of the applicant's non-refoulement obligations or amounted to prolonged detention. Given these findings, the court dismissed the applicant's application for judicial review.

In accordance with the orders sought by the Minister, the Federal Court dismissed the application and ordered that the applicant pay the Minister's costs of the application. The court's decision was final, and no further appeals were possible in this matter.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the first respondent’s costs of the application, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Under s 501CA of the Act, a non-citizen whose visa has been cancelled under s 501(3A) of the Act may apply for a revocation of that decision. The provision relevantly provides as follows:501CACancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.…(3) As soon as practicable after making the original decision, the Minister must:(a)give the person, in the way that the Minister considers appropriate in the circumstances:(i) a written notice that sets out the original decision; and(ii) particulars of the relevant information; and(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.(4) The Minister may revoke the original decision if:(a)the person makes representations in accordance with the invitation; and(b) the Minister is satisfied:(i)that the person passes the character test (as defined by section 501); or(ii)that there is another reason why the original decision should be revoked. Section 496 of the Act broadly permits the Minister to delegate Ministerial functions. It relevantly provides as follows:496 Delegation(1)The Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under this Act. Section 500 of the Act is titled “Review of decision”, and relevantly provides as follows: (1)Applications may be made to the Administrative Appeals Tribunal for review of:…(ba)decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa… As should be clear from the factual summary that appears above, there was no contest that the applicant made representations of the sort contemplated by s 501CA(4)(a) of the Act (hereafter, the “Revocation Submissions”). Likewise, the applicant accepted (and still accepts) that he did (and does) not pass the “character test” to which s 501CA(4)(b)(i) of the Act refers. At issue before the Tribunal was whether there was “another reason” under s 501CA(4)(b)(ii) of the Act why the Cancellation Decision ought to have been revoked. Section 499 of the Act confers upon the Minister a power to issue directions to people or bodies that exercise powers or functions under the Act as to how those powers or functions are to be exercised or performed. Such directions are binding. Relevant presently is a written direction issued by the Minister under s 499 of the Act in December 2018, entitled “Ministerial Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA”. That direction (hereafter, “Direction 79”) serves as a guide as to how the power conferred by s 501CA(4) of the Act might be exercised. It requires that decision makers who are charged with considering the exercise of that power must take into account a suite of identified considerations.

Ratio Decidendi

Legal Principle Established

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