Application for judicial review of DKXY and Minister for Home Affairs (Migration) [2018] AATA 3779 (10 October 2018)
File number:
NSD 2048 of 2018
Judge:
GRIFFITHS J
Date of judgment:
11 April 2019
Catchwords:
MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) to affirm the Minister’s delegate’s decision not to revoke mandatory cancellation of the applicant’s Class CD Subclass 851 Resolution of Status visa under s 501CA(4) – whether there was “another reason” for revoking mandatory cancellation of the visa – where the applicant fled North Korea more than 20 years ago – whether the AAT erred in adopting the reasoning in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [75]-[77] (YNQY) that the primary consideration of the expectations of the Australian community in Direction 65 always weighed against revocation – whether the AAT misunderstood or misconstrued its controlling rules by making a finding that it did not need to assess the applicant’s protection claims and Australia’s non-refoulement obligations because the applicant had the opportunity to apply for a protection visa at which time those claims could be substantively considered – whether s 36(3) of the Migration Act 1958 (Cth) may prevent substantive consideration of the applicant’s protection claims under ss 36(2)(a) or 36(2)(aa) in circumstances where the applicant may be able to seek enter and reside in South Korea
ADMINISTRATIVE LAW – whether the AAT failed to respond to a substantial and clearly articulated argument with respect to the operation of s 36(3) resulting in a breach of procedural fairness – whether there was irrationality or illogicality in the AAT making statements that it was not satisfied that Australia owed protection obligations to the applicant and that it was bound by the relevant reasoning in YNQY and then proceeding to assess the applicant’s claims on the assumed basis that protection obligations were owed and that it was entitled to examine the totality of the applicant’s circumstances in applying the primary consideration of the expectations of the Australian community – whether findings by the AAT that it was not satisfied that the applicant continued to be of interest to the North Korean authorities lacked rational foundation or an evident or intelligible justification in light of the country information adduced by the applicant before the AAT
Minister for Immigration and Border Protection v Eden [2016] FCAFC…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
DKXY v Minister for Home Affairs [2019] FCA 495
Case
[2019] FCA 495
Decision Date
CaseChat Overview and Summary
The case of DKXY v Minister for Home Affairs involved an application by the applicant, a North Korean national, for judicial review of a decision by the Administrative Appeals Tribunal (AAT) affirming the Minister’s delegate’s decision not to revoke the mandatory cancellation of the applicant’s visa. The applicant had fled North Korea over 20 years ago and had a history of drug-related offenses. The legal issues before the court were whether the AAT erred in its interpretation of Direction 65, whether the AAT failed to consider the applicant’s protection claims and Australia’s non-refoulement obligations, and whether the AAT’s findings were irrational or lacked rational foundation.
The court found that the AAT did not err in adopting the reasoning from YNQY v Minister for Immigration and Border Protection, which established that the primary consideration of the expectations of the Australian community in Direction 65 generally weighed against revocation. The court also found that the AAT did not misunderstand or misconstrue its controlling rules by deciding not to assess the applicant’s protection claims and Australia’s non-refoulement obligations. The court held that the AAT was entitled to examine the totality of the applicant’s circumstances in applying the primary consideration of the expectations of the Australian community. Furthermore, the court found that the AAT’s findings that it was not satisfied that the applicant continued to be of interest to the North Korean authorities had rational foundation and an evident or intelligible justification.
Accordingly, the originating application was dismissed, with costs. The court held that the AAT’s decision was lawful and that the applicant was not entitled to the relief sought. The court also held that the AAT had not breached any principle of natural justice or procedural fairness in reaching its decision.
Orders
Orders of the court
1. The originating application filed on 2 November 2018 be dismissed.
2. The applicant pay the costs of the first respondent, as agreed or assessed.
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 that follow, the originating application will be dismissed, with costs.Summary of background facts The applicant is a national of North Korea. He was born in May 1967. He has lived in Australia for over 20 years. In around 1987 he fled North Korea to the People’s Republic of China (China). He claims to have spoken out against the administration and government in North Korea before he fled. He spent six years in China before he hid in a cargo ship which brought him to North Queensland in about 1993, when he was aged about 25 or 26. He subsequently moved to Sydney where he worked as a kitchen hand in various restaurants. In around 1999 the applicant was detained by the Department of Immigration as an unlawful non-citizen. In 2001, he was granted a temporary protection visa and released from detention. He then worked as a tiler, welder and labourer. He also married for the first time. In August 2008, the applicant was convicted of the “supply of a prohibited drug” and was sentenced to imprisonment for a term of 2 years and 3 months. He was released on parole on 2 January 2009. In 2012, he married his second wife. At that time he was working as a professional golf coach in Australia. He and his second wife returned to China in 2013. His second wife miscarried while they were in China. He returned to Australia alone in November 2013. His wife remained behind in China because of visa issues. When he returned to Australia from China, the applicant said that he increased his use of the drug “ice”, which was costing him approximately $500-$600 per day. He ascribed his drug use to depression stemming from his wife’s miscarriage and the loss of contact with his family since fleeing North Korea in 1987. He said that because he was not working then, he obtained money by selling drugs. In June 2015, he was convicted of the offence of “supply prohibited drug” and was given a six year sentence. This led to the cancellation of his visa on 17 May 2017. It should also be noted that the applicant was given a formal warning by the Department in January 2009 that further offending by him might affect his residence in Australia. The applicant acknowledged the warning in writing. One further relevant fact should be noted. As was acknowledged by the AAT, the applicant had previously held a temporary protection visa, a criterion for which was that he was a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees. The AAT’s reasons for decision summarised It not being in dispute that the applicant did not pass the character test as defined in s 501 of the Act, the AAT identified the relevant issue before it as to whether there was “another reason” why the mandatory cancellation decision should be revoked. The AAT acknowledged that this required it to examine and weigh the matters for and against revoking that decision, while noting that it was bound by the relevant terms of Direction No 65 (the Direction), which had been issued by the Minister under s 499 of the Act. The AAT summarised the relevant parts of that Direction, including the reference in cl 13 of Pt 7 thereof which identified the following considerations as “primary considerations”:(a)protection of the Australian community from criminal or other serious conduct;(b)the best interests of minor children in Australia; and (c)expectations of the Australian community.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
One further relevant fact should be noted. As was acknowledged by the AAT, the applicant had previously held a temporary protection visa, a criterion for which was that he was a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees. The AAT’s reasons for decision summarised It not being in dispute that the applicant did not pass the character test as defined in s 501 of the Act, the AAT identified the relevant issue before it as to whether there was “another reason” why the mandatory cancellation decision should be revoked. The AAT acknowledged that this required it to examine and weigh the matters for and against revoking that decision, while noting that it was bound by the relevant terms of Direction No 65 (the Direction), which had been issued by the Minister under s 499 of the Act. The AAT summarised the relevant parts of that Direction, including the reference in cl 13 of Pt 7 thereof which identified the following considerations as “primary considerations”:(a)protection of the Australian community from criminal or other serious conduct;(b)the best interests of minor children in Australia; and (c)expectations of the Australian community. It is apt to set out the following relevant paragraphs from the Direction:6.2 General Guidance(l)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen's visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.6.3 Principles(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age. …8. Taking the relevant considerations into account(l)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.(4)Primary considerations should generally be given greater weight than the other considerations.(5)One or more primary considerations may outweigh other primary considerations. PART C13. Primary considerations - revocation requests…(2)In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations: a)Protection of the Australian community from criminal or other serious conduct;b) The best interests of minor children in Australia;c) Expectations of the Australian community.…13.3 Expectations of the Australian community(l)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.…