DGP20 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

DGP20 v Minister for Home Affairs [2020] FCA 1055

File number: VID 1022 of 2018
Judge: MOSHINSKY J
Date of judgment: 24 July 2020
Catchwords: MIGRATION – cancellation of visa pursuant to s 501(2) of the Migration Act 1958 (Cth) – where the Department gave the applicant notice of intention to consider cancellation of his visa – where the applicant in his submissions raised concerns about law and order, and safety and security in Afghanistan – where the applicant’s material stated that his life would be in danger as he would be regarded as a foreigner in Afghanistan – where the Assistant Minister considered that the applicant had made claims that could give rise to international non-refoulement obligations – where the Assistant 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 any such error was material
Legislation: Migration Act 1958 (Cth), ss 5J, 36, 65, 501, 501BA, 501CA
Cases cited:

Ali v Minister for Home Affairs [2020] FCAFC 109

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

DGI19 v Minister for Home Affairs [2019] FCA 1867

DHS17 v Assistant Minister for Immigration and Border Protection (2018) 267 FCR 411

Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309

Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123

Ibrahim v Minister for Home Affairs (2019) 270 FCR 12

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Omar v Minister for Home Affairs [2019] FCA 279

Re Patterson; Ex parte Taylor (2001) 207 CLR 391

Steyn v Minister for Immigration and Border Protection [2017] FCA 1131

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

Date of hearing: 12 March 2020
Date of last submissions: 17 July 2020
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 54
Counsel for the Applicant: Mr N Wood
Solicitor for the Applicant: Victoria Legal Aid
Counsel for the Respondent: Mr W Mosley
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 1022 of 2018
BETWEEN:

DGP20

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:

MOSHINSKY J

DATE OF ORDER:

24 JULY 2020

THE COURT ORDERS THAT:

1.A writ of certiorari issue quashing the purported decision of the Assistant Minister for Home Affairs dated 31 July 2018 to cancel the applicant’s Class BB Subclass 155 Resident Return Five Year visa.

2.The applicant have liberty to apply within 14 days to seek any further relief.

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

THE COURT DIRECTS THAT:

4.Within 14 days, the parties file any agreed proposed minutes…

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Details
Case
[2020] FCA 1055
Decision Date

CaseChat Overview and Summary

The case of DGP20 v Minister for Home Affairs involved the applicant, DGP20, who was seeking to challenge the decision of the Assistant Minister for Home Affairs to cancel his visa under section 501(2) of the Migration Act 1958 (Cth). DGP20, a citizen of Afghanistan, had arrived in Australia in 1996 and had a history of criminal convictions in Victoria, including multiple charges of assault and causing serious injury. The Assistant Minister considered that DGP20 did not pass the character test due to his substantial criminal record and exercised the discretion to cancel his visa. DGP20 argued that the Assistant Minister's decision was flawed due to certain misunderstandings and that any such errors were material.

The primary legal issue before the court was whether the Assistant Minister's decision to cancel DGP20's visa was affected by any misunderstandings alleged by DGP20, and if such errors were material. The court also had to consider whether the Assistant Minister properly exercised the discretion to cancel DGP20's visa by taking into account the relevant factors, including DGP20's claims regarding his safety and security if returned to Afghanistan. Furthermore, the court examined whether the Assistant Minister correctly assessed DGP20's potential international non-refoulement obligations and if these obligations were considered in the context of DGP20's application for a protection visa.

The court found that the Assistant Minister's decision was not materially affected by any alleged misunderstandings. It was determined that the Assistant Minister correctly exercised the discretion to cancel DGP20's visa, taking into account the relevant factors, including DGP20's criminal history and the risk he posed to the Australian community. The court held that the Assistant Minister appropriately considered DGP20's claims regarding his safety and security in Afghanistan, but ultimately found that these claims did not engage any international non-refoulement obligations. The court quashed the Assistant Minister's decision to cancel DGP20's visa and ordered that a writ of certiorari issue to that effect. Additionally, the court directed that the respondent pay the applicant's costs of the proceeding and provided a process for determining the appropriate lump sum figure for those costs.

Orders

Orders of the court

1. A writ of certiorari issue quashing the purported decision of the Assistant Minister for Home Affairs dated 31 July 2018 to cancel the applicant’s Class BB Subclass 155 Resident Return Five Year visa.

2. The applicant have liberty to apply within 14 days to seek any further relief.

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

THE COURT DIRECTS THAT:

4. Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the applicant’s costs.

5. 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

The expression “character test” is defined in s 501(6). Relevantly, s 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record, as defined by s 501(7). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.Background facts In addition to the facts referred to above, the background facts are as follows. These are based on the material in the bundle of documents (labelled “Relevant Documents”) prepared for the purposes of the hearing. The applicant first arrived in Australia in 1996, aged 42 years. On 27 July 1999, the applicant was convicted in the Magistrates’ Court of Victoria of the following offences: recklessly cause injury (two charges); assault with weapon; make threat to kill (two charges); and unlawful assault. He was sentenced to six months imprisonment, to be served by way of an intensive correction order. On 26 March 2002, the applicant was convicted in the Supreme Court of Victoria of the offence of intentionally cause serious injury and sentenced to six years and six months imprisonment. The sentencing remarks of the sentencing judge are included in the materials before the Court. As described in the sentencing remarks, the applicant assaulted his wife with a meat cleaver in the kitchen of the family home. The applicant used the meat cleaver to strike his wife on the left side of her temple and on the back of her head. The judge described it as “a continuing and savage attack on a defenceless, unarmed woman whilst she was retreating”. The applicant’s wife was taken to hospital, where she was treated in order to stem the blood loss and close the wounds. A doctor gave evidence at the trial that if the bleeding had been allowed to occur for very much longer, the applicant’s wife would have died. The sentencing judge discussed various mitigating and aggravating factors. A non-parole period of four-and-a-half years was set. In 2005, the then Department of Immigration and Multicultural and Indigenous Affairs gave consideration to cancellation of the applicant’s visa pursuant to s 501 of the Migration Act. Ultimately, it was decided not to cancel the applicant’s visa. By a letter dated 4 October 2005, the Department gave the applicant notice of the decision not to cancel his visa. The letter included a prominent warning that the applicant “must control his violent outbursts or he will find his visa will be cancelled”. The letter included a statement that “visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds”. It was further stated: “Disregard of this warning will weigh heavily against you if your case is reconsidered.” The applicant signed an acknowledgment of receipt of this notice on 10 October 2005. On 29 June 2007, the applicant was convicted in the Magistrates’ Court of Victoria of the offences unlawful assault (two charges) and make threat to kill. He was sentenced to a community based order for 12 months. The material before the Court does not provide any detail regarding the circumstances of these offences.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

One of the documents submitted by the applicant was a statutory declaration from a friend of the applicant, dated 4 June 2017. The statutory declaration stated that if the applicant returned to Afghanistan “his life will be in danger as [A]fghans already see him as a foreigner”, and “[h]e will be suffering consequences, getting bullied or maybe even killed”.The Assistant Minister’s decision and reasons As noted above, on 31 July 2018, the Assistant Minister made the cancellation decision. The Assistant Minister stated in the decision that he reasonably suspected that the applicant did not pass the character test and that the applicant had not satisfied him that he passed the character test. The Assistant Minister stated that he had decided to exercise his discretion under s 501(2) to cancel the applicant’s visa. The Assistant Minister signed a statement of reasons on the same day (the statement of reasons). In the statement of reasons, the Assistant Minister dealt initially with the character test. On the basis of the applicant’s sentence in 2002, being for a term of imprisonment of 12 months or more, the Assistant Minister: (a) reasonably suspected that the applicant did not pass the character test; and (b) was not satisfied that the applicant did pass the character test: see s 501(6)(a) and (7)(c). Thus the discretion to cancel the applicant’s visa was enlivened. In the balance of the statement of reasons, the Assistant Minister considered the exercise of the discretion to cancel the visa. This part of the reasons is arranged under the following headings:·Protecting the Australian Community;·Criminal Conduct;·Risk to the Australian Community;·Best interests of minor children;·Expectations of the Australian community;·International non-refoulement obligations;·Ties to Australia;·Extent of impediments if removed. In the part of the statement of reasons dealing with international non-refoulement obligations, the Assistant Minister stated:International non-refoulement obligations40.[The applicant] has made claims that may give rise to international non-refoulement obligations. I note [the applicant] states that he will face harm if returned to Afghanistan due to that country’s lack of law and order, and his fears for his safety and security. [Name omitted] states that [the applicant’s] life would be in danger as [the applicant] would be regarded as a foreigner by the Afghan people. As a result, [the applicant] will be bullied and possibly killed.41.I am aware that the Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, the Minister has given a direction under s499 of the Act (Direction 75) requiring that decision makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s501.42.I consider it highly likely that any Protection visa application will be considered by a delegate, and I note that such a delegate will be bound by the terms of Direction 75.43.In those circumstances, I consider it unnecessary to determine whether non-refoulement obligations are owed in respect of [the applicant] for the purposes of the present decision as he is able to make a valid application for a Protection visa. In the (highly likely) case that such an application is considered by a delegate, non-refoulement obligations would be considered in the course of processing the application.44.I have also considered and taken into account the possibility that it may be the case that the Minister at that time personally considers [the applicant’s] Protection visa application, rather than a delegate. In such a case, the Minister would not be bound by Direction 75 and would not necessarily determine whether non-refoulement obligations are owed in respect of [the applicant]. However, such a situation would only arise in the unlikely event that the Minister determines to depart from the usual practice regarding the processing of Protection visa applications and determines further to depart from the policy approach set out in Direction 75. I have nevertheless taken into account the fact that that is a possible consequence of my decision, albeit an unlikely one.45.I have also considered [the applicant’s] claims of harm upon return to Afghanistan outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the applicant’s] claims are such as to engage non-refoulement obligations, [the applicant] would face hardship arising due to his concerns regarding Afghanistan’s law and order, the lack of family and financial support, and that his life, safety and security will be compromised if he were to return to Afghanistan.(Emphasis added.)

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.