DGI19 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

DGI19 v Minister for Home Affairs [2019] FCA 1867

File number: VID 1180 of 2018
Judge: MOSHINSKY J
Date of judgment: 14 November 2019
Catchwords: MIGRATION – mandatory cancellation of applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) – decision by the Minister under s 501CA(4) not to revoke the cancellation decision – where applicant was a national of Sierra Leone whose mother had been granted a Refugee and Humanitarian (Class XB) Woman at Risk (Subclass 204) visa – where the applicant made submissions to the Minister that returning the applicant to Sierra Leone would breach Australia’s non-refoulement obligations under international law – where the Minister stated that it was unnecessary to determine whether non-refoulement obligations were owed as the applicant was able to make a valid application for a protection visa – whether the Minister’s decision was affected by any of the misunderstandings alleged by the applicant – whether the Minister failed to give genuine consideration to matters raised by the applicant
Legislation:

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 499, 501, 501BA, 501CA

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

Cases cited:

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

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

DOB18 v Minister for Home Affairs [2019] FCAFC 63

GBV18 v Minister for Home Affairs [2019] FCA 1132

Goundar v Minister for Immigration and Border Protection (2016) 160 ALD 123

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

Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423

Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1

Ibrahim v Minister for Home Affairs [2019] FCAFC 89

Minister for Home Affairs v Omar [2019] FCAFC 188

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

Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599

Omar v Minister for Home Affairs [2019] FCA 729

Sowa v Minister for Home Affairs [2019] FCAFC 111

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

Turay v Assistant Minister for Home Affairs [2018] FCA 1487

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

Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22
Date of hearing: 4 March 2019
Date of last submissions: 8 November 2019
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 98
Counsel for the Applicant: Mr N Wood
Solicitor for the Applicant: Holding Redlich
Counsel for the Respondent: Mr R Knowles
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 1180 of 2018
BETWEEN:

DGI19

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:

MOSHINSKY J

DATE OF ORDER:

14 NOVEMBER 2019

THE COURT ORDERS THAT:

1.The decision of the respondent made on 13 August 2018 not to revoke the decision to cancel the applicant’s…

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Details
Case
[2019] FCA 1867
Decision Date

CaseChat Overview and Summary

In the case of DGI19 v Minister for Home Affairs, the applicant, a national of Sierra Leone, sought judicial review of a decision by the Minister for Home Affairs not to revoke a mandatory cancellation of his visa under section 501(3A) of the Migration Act 1958 (Cth). The applicant's mother had been granted a Refugee and Humanitarian (Class XB) Woman at Risk (Subclass 204) visa. The applicant argued that returning him to Sierra Leone would breach Australia's non-refoulement obligations under international law. The Minister decided not to revoke the cancellation decision, stating that it was unnecessary to determine whether non-refoulement obligations were owed as the applicant was able to make a valid application for a protection visa.

The legal issues before the court were whether the Minister’s decision was affected by any of the misunderstandings alleged by the applicant and whether the Minister failed to give genuine consideration to matters raised by the applicant. The applicant claimed that the Minister misunderstood the nature and scope of the applicant's claims and their consideration in a protection visa application. He also argued that the Minister failed to genuinely consider the potential consequences of not revoking the cancellation decision, including the risk of serious harm to the applicant if returned to Sierra Leone.

The court found that the Minister did not genuinely consider the applicant's claims and the potential consequences of not revoking the cancellation decision. The court held that the Minister's decision was flawed because he did not properly consider the applicant's submissions and evidence, particularly the risk of serious harm if returned to Sierra Leone and the breach of non-refoulement obligations. The court set aside the Minister's decision not to revoke the cancellation decision and directed the Minister to determine the applicant's application for revocation according to law.

The court ordered that the decision of the Minister made on 13 August 2018 not to revoke the decision to cancel the applicant’s visa be set aside. The respondent was directed to determine the applicant’s application for revocation of the decision to cancel his visa pursuant to section 501CA of the Migration Act 1958 (Cth) according to law. The court also ordered that the respondent pay the applicant’s costs of the proceeding, subject to the possibility of variation upon notice.

Orders

Orders of the court

1. The decision of the respondent made on 13 August 2018 not to revoke the decision to cancel the applicant’s visa be set aside.

2. The respondent determine the applicant’s application for revocation of the decision to cancel his visa pursuant to s 501CA of the Migration Act 1958 (Cth) according to law.

3. Subject to paragraph 4, the respondent pay the applicant’s costs of the proceeding, to be fixed by way of a lump sum.

4. If the respondent wishes to seek a variation of the costs order in paragraph 3, he may give notice in writing to the Court and the applicant within seven business days. Directions will then be made for the determination of the issue of costs on the papers.

THE COURT DIRECTS THAT:

5. Subject to paragraph 4, within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the applicant’s costs. In the absence of any agreement:

(a) within 21 days, the applicant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b) within a further 14 days, the respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c) in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the applicant’s costs be referred to a Registrar for determination.

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

On 30 January 2015, the applicant’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the cancellation decision). An application by the applicant for revocation of the cancellation decision was rejected by the Assistant Minister for Immigration and Border Protection on 29 August 2016. However, that decision was set aside by the Court on the basis that the Assistant Minister, in reaching the conclusion that the applicant represented “an unacceptable risk of harm to the Australian community”, had failed to consider a particular, significant aspect of the applicant’s submissions and evidence. Following that decision, the applicant’s lawyers, Holding Redlich, made further submissions in support of the applicant’s application for revocation of the cancellation decision. These submissions also referred to and relied on earlier submissions that had been made by, or on behalf of, the applicant. Prominent among the submissions was that the applicant would suffer serious harm if returned to Sierra Leone and that returning the applicant to Sierra Leone would breach Australia’s non-refoulement obligations under international law. In particular, the applicant stated that his country was at war, his sister had been kidnapped by rebels, his father had been killed by rebels, and he feared he would share the same fate if he was returned. On 13 August 2018, the respondent (the Minister) decided not to revoke the cancellation decision (the non-revocation decision). The Minister stated that he was not satisfied, for the purposes of s 501CA(4), that there was another reason why the cancellation decision should be revoked. Of relevance for present purposes, the Minister stated that he considered it unnecessary to determine whether non-refoulement obligations were owed in respect of the applicant, as he was able to make a valid application for a protection visa. By this proceeding, the applicant seeks judicial review of the non-revocation decision. In his amended originating application dated 12 February 2019, the applicant relies on a single ground, namely that the Minister failed to carry out his statutory task by failing to consider a reason claimed by the applicant as to why the cancellation decision should be revoked. By way of the particulars to that ground, the applicant effectively raises four grounds in support of his application for judicial review (set out in paragraph (d)(i), (ii) and (iii) and paragraph (e) of the particulars). Consistently with the way the case was presented, it will be convenient to refer to these as separate grounds. The four grounds may be summarised as follows:(a)First, the Minister misunderstood that the applicant’s claims would “necessarily” be considered in the event that the applicant was to make an application for a protection visa (ground 1).(b)Secondly, the Minister incorrectly assumed that the applicant’s claims would be considered in the same way if he applied for a protection visa, where the circumstances in which consideration of non-refoulement occurs are quite different as between the exercise of the discretionary revocation power in s 501CA of the Migration Act and the determination of a visa application under s 65 of the Act (ground 2).(c)Thirdly, the Minister incorrectly assumed that the existence or otherwise of non-refoulement obligations would be considered in the event that the applicant made an application for a protection visa. That is not so, as the criteria for a protection visa under s 36(2) substantially differ from, and do not reflect, Australia’s non-refoulement obligations (ground 3).(d)Fourthly, the Minister failed to give genuine consideration to matters raised by the applicant as potential consequences of not revoking the cancellation decision (including that he may die if removed to Sierra Leone) (ground 4).

Ratio Decidendi

Legal Principle Established

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