DGBK v Minister for Home Affairs

Case [2019] FCA 1479

FEDERAL COURT OF AUSTRALIA

DGBK v Minister for Home Affairs [2019] FCA 1479

File number: WAD 179 of 2019
Judge: MCKERRACHER J
Date of judgment: 9 September 2019
Catchwords: MIGRATION – judicial review of a revocation decision in respect of a mandatory cancellation decision – protection visa cancellation on character grounds – whether the Tribunal misunderstood the consequences of its decision – where phrase ‘indefinite detention’ used – where the Tribunal’s reasons, read as a whole, fail to disclose a misapprehension  
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 25(1)(a), 43

Migration Act 1958 (Cth) ss 5, 14, 48A(1B), 195, 195A(4), 195A(5), 197AB, 197AE, 197AF, 197C , 197C(1), 198, 198(2B), 499, 500(1)(ba), 501CA, 501CA(4), 501E, 501(3A), 501(6)(a), 501(6)(e)(i), 501(7)(c)

Cases cited:

Al-Kateb v Godwin (2004) 219 CLR 562

DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576

NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506

Date of hearing: 9 August 2019
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 43
Counsel for the applicant: Mr H Glenister
Solicitor for the applicant: Cathal Smith Legal
Counsel for the First Respondent: Ms C Taggart
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to the question of costs

ORDERS

WAD 179 of 2019
BETWEEN:

DGBK

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

9 SEPTEMBER 2019

THE COURT ORDERS THAT:

1.The application be dismissed. 

2.The applicant pay the costs of the first respondent, to be assessed if not agreed. 

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


REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

  1. The issue in this application is the validity of a decision made by the Administrative Appeals Tribunal to affirm the decision of a delegate of the Minister for Home Affairs to refuse to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth).

  2. It was and is uncontroversial that the applicant does not pass the character test (by operation of s 501(6)(a) and s 501(6)(e)(i) of the Act). The Tribunal was to assess whether there was ‘another reason’ why the decision to cancel the applicant’s visa should be revoked.

  3. The applicant seeks to rely on an amended application containing a single ground of review, which alleges:

    The [Tribunal] failed to complete its statutory task, in that it misunderstood the legal consequences of its decision by finding at [98] that the applicant would be subject to indefinite detention until it was reasonably practicable to remove him. 

    (Emphasis added.)

  4. For the reasons which follow, I am not satisfied any jurisdictional error is made out. 

    BACKGROUND

  5. The applicant is an Afghani national who was granted a protection visa on 14 May 2012.

  6. On being convicted of a number…

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AGLC
DGBK v Minister for Home Affairs [2019] FCA 1479
Case
[2019] FCA 1479
Decision Date

CaseChat Overview and Summary

In the matter of DGBK v Minister for Home Affairs, the Federal Court was called upon to review a decision of the Administrative Appeals Tribunal which had upheld the decision of a delegate of the Minister for Home Affairs not to revoke the mandatory cancellation of the applicant's visa under s 501CA(4) of the Migration Act. The applicant, an Afghan national, had been granted a protection visa in 2012, but this was cancelled in 2016 following a conviction for sexual offences against children. The Tribunal had found that the applicant, if unsuccessful in his application for review, would be liable for return to Afghanistan as soon as reasonably practicable, and in the meantime would be subject to indefinite detention. The applicant sought judicial review of the Tribunal’s decision on the basis that it had misunderstood the consequences of its decision by failing to take into account that he could not be returned to Afghanistan without Australia breaching its non-refoulement obligations.

The central legal issue before the court was whether the Tribunal had misunderstood the consequences of its decision, as contended by the applicant. The court was required to determine whether the Tribunal’s reference to ‘indefinite detention’ in its reasons demonstrated a misapprehension of the legal framework governing the applicant's circumstances. This included understanding the non-refoulement obligations under international law and the operation of s 197C(2) of the Migration Act, which clarifies that the duty to remove an unlawful non-citizen arises irrespective of Australia's non-refoulement obligations.

The court found that the Tribunal’s reference to ‘indefinite detention’ did not indicate a misapprehension of the legal framework. The court noted that the Tribunal’s reasons, read as a whole, appropriately considered the statutory provisions and the applicant's non-refoulement obligations. The court was satisfied that the Tribunal had correctly understood that the applicant could not be returned to Afghanistan without breaching Australia’s non-refoulement obligations, but this did not alter the fact that the duty to remove him as soon as reasonably practicable remained under s 197C(2) of the Migration Act. The court concluded that the Tribunal’s reasons did not disclose a misapprehension of the consequences of its decision.

Accordingly, the court dismissed the application for judicial review. The applicant was ordered to pay the costs of the first respondent, to be assessed if not agreed.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the costs of the first respondent, to be assessed if not agreed.

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

Background

Background to the litigation

For the reasons which follow, I am not satisfied any jurisdictional error is made out. BACKGROUND The applicant is an Afghani national who was granted a protection visa on 14 May 2012. On being convicted of a number of offences relating to sexual offences against children, he was sentenced on 29 January 2015 and then again on 11 June 2015 to imprisonment. On 27 September 2016, whilst imprisoned, the applicant’s visa was cancelled pursuant to s 501(3A) of the Act. That cancellation was mandatory. He then became an ‘unlawful non-citizen’ for the purposes of the Act: see s 5 and s 14 of the Act. The applicant requested revocation of the cancellation decision on 27 September 2016, but on 7 December 2018, a delegate of the Minister decided not to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Act. On 17 December 2018, the applicant applied to the Tribunal for review of the delegate’s decision. On 27 February 2019, the Tribunal affirmed the delegate’s decision not to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Act. It is this decision which is the subject of review to this Court. The paragraph at the heart of the dispute between the parties appears at [98] of the Tribunal’s reasons:In late 2017 DGBK was found to be a person in respect of whom Australia has protection obligations. He cannot currently be returned to Afghanistan without Australia breaching those obligations. If his application before the Tribunal is unsuccessful, DGBK would be liable for return to Afghanistan as soon as is reasonably practicable, and in the meantime he would be subject to indefinite detention. The Tribunal accepts that prolonged immigration detention has the potential to adversely affect DGBK’s health and welfare.(Citations omitted, emphasis added.)THE PRINCIPLES Section 501(3A) of the Act operates to compel the cancellation of a visa by the Minister. The Minister must cancel a visa that has been granted to a person if, relevantly, the Minister is satisfied that the person has a substantial criminal record on the basis of s 501(7)(c) of the Act and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of a State. The Minister may revoke a decision made under s 501(3A) of the Act if, relevantly, the Minister is satisfied ‘that there is another reason why the original decision should be revoked’: s 501CA(4). By s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and s 500(1)(ba) of the Act, the Tribunal is empowered to review the decisions made by delegates of the Minister to refuse to revoke the cancellation of a person’s visa under s 501CA. The Tribunal is required to provide reasons for its decision, including in those reasons, findings on material questions of fact, and a reference to the evidence or other material on which those findings were based: see s 43 of the AAT Act The Tribunal must comply with directions made under s 499 of the Act. The relevant direction at the time of the Tribunal’s decision was Direction No. 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal’s reference to ‘indefinite’ in this case is in contrast to the description given by Gummow J in Al-Kateb (in the last sentence cited above at [24]) in a decision which predated the introduction of s 197C(2).CONCLUSION As the single ground raised has not been made out, the application will be dismissed with costs.

Ratio Decidendi

Legal Principle Established

The Tribunal’s reasons must be read as a whole, however in considering the applicant’s contentions it is appropriate to set out three additional paragraphs central to this application. The first two of these paragraphs come earlier in the Tribunal’s reasons under the heading ‘Statutory Framework’ and prior to the impugned paragraph containing the reference to ‘indefinite detention’. There the Tribunal sets out the key provision in s 197C(2) and the extracts from the explanatory memorandum (at [47]-[48]):47.Section 197C(1) of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. Section 197C(2) provides that:(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.48.The purpose of introducing s 197C into the Act is contained in the Explanatory Memorandum (EM) to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. Clauses 1132 to 1146 of the EM relate to the application of s 197C to Australia’s non-refoulement obligations:1132. The effect of new section 197C is to make it clear that in order to exercise the removal powers under section 198 of the Migration Act an officer is not bound to consider whether or not a person who is subject to removal engages Australia’s non-refoulement obligations before removing that person.1133. In recent years judicial review of protection visa refusal decisions has led to a number of broad and unintended interpretations of Australia’s protection obligations under the Refugees Convention and other international treaties. There has been a trend of jurisprudence favouring an approach whereby the provisions of the Migration Act are construed in light of presumed legislative intention for the Migration Act as a whole to facilitate Australia’s compliance with its obligations under the Refugees Convention.…… These decisions have had significant impact on the Government’s ability to remove unlawful non-citizens from Australia under section 198 of the Migration Act.1136. Prior to this recent jurisprudence, section 198 of the Migration Act created an obligation to remove unlawful non-citizens in the circumstances prescribed in section 198 and this duty was not constrained by reference to Australia’s international obligations…. This was because it was understood that Australia’s international obligations had already been considered during separate processes prior to removal, for example when considering the person’s application for a protection visa or when the Minister was considering the use of his or her personal powers.1137. In general terms, the amendments in this item are intended to restore the situation to that arising prior to the jurisprudence noted above by making it clear that the removal powers are separate from, unrelated and completely independent of, any provisions in the Migration Act which might be interpreted as implementing Australia’s non-refoulement obligations.…1140. The amendments are intended to put it beyond doubt that the purpose of section 198 is not to respond to international protection obligations, but to provide officers with the duty to remove unlawful non-citizens from Australia in the circumstances set out in section 198 of the Migration Act.1141. This means that the duty to remove in section 198 of the Migration Act arises irrespective of whether or not there has been an assessment, according to law or procedural fairness, of Australia’s non-refoulement obligations in respect of the non-citizen.1142. Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.…1146. The above mechanisms enable non-refoulement obligations to be addressed before a person becomes ready for removal. At the removal stage, an officer will not be bound to check whether or not the Minister has considered exercising his or her personal powers when assessing if a person is subject to removal under section 198 of the Migration Act. If an unlawful non-citizen satisfies one of the conditions specified in section 198, the officer must remove the unlawful non-citizen as soon as reasonably practicable and it is not open to the non-citizen to challenge their removal on the basis that there has been no assessment of protection obligations according to law or procedural fairness.(Citations omitted, emphasis added.)