DOB18 v Minister for Home Affairs

Link copied
Case Copied 82 min read

FEDERAL COURT OF AUSTRALIA

DOB18 v Minister for Home Affairs [2019] FCAFC 63

Appeal from: DOB18 v Minister for Home Affairs [2018] FCA 1523
File number: NSD 2040 of 2018
Judges: RARES, LOGAN AND ROBERTSON JJ
Date of judgment: 18 April 2019
Catchwords:

MIGRATION – appeal from judgment of judge of the Federal Court of Australia – whether the primary judge erred in concluding that the Minister had not fallen into jurisdictional error in reasoning that it was unnecessary to determine whether non-refoulement obligations were owed in respect of the appellant – whether the primary judge erred in reaching the conclusion that non-refoulement considerations would be (necessarily, as a matter of law) considered in any future protection visa application that the appellant might bring, even if the application were determined by the Minister personally – whether the primary judge erred in relying upon different stages of decision-making – relevant distinction between considering harm, or the risk of harm and hardship, and considering whether or not, if the appellant made a protection visa application, non-refoulement obligations would then be fully considered – consideration of BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 – Held: appeal dismissed

PRACTICE AND PROCEDURE – refusal of leave to raise new ground on appeal that the Minister fell into jurisdictional error in making the decision under s 501BA of the Migration Act 1958 (Cth) outside a reasonable time for the making of such a decision

Legislation:

Federal Court of Australia Act 1976 (Cth) s 27

Migration Act 1958 (Cth) ss 4, 5, 5M, 13, 14, 15, 29, 36, 46, 47, 65, 84, 86, 189, 193, 194, 195, 196, 197C, 198, 476A 496, 500, 501, 501A, 501B, 501BA, 501CA, 501E, 501G

Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth)

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) ss 5, 5M

War­time Refugees Removal Act 1949 (Cth)

Migration Regulations 1994 (Cth) reg 2.52; Sch 2
Cases cited:

AFY18 v Minister for Home Affairs [2018] FCA 1566

Ahmetovic vImmigration and Naturalization Service 62 F.3d 48 (2nd Cir. 1995)

Al-Sirri v Secretary of State for the Home Department [2013] 1 AC 745

Alcan (NT) Alumina Pty Ltd v Commissioner of Taxation Revenue (2009) 239 CLR 27

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

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27

AQM18 v Minister for Immigration and Border Protection [2018] FCA 944

ASP15 v Commonwealth of Australia (2016) 248 FCR 372

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

AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451

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

BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288

BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530

EN (Serbia) v Secretary…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read DOB18 v Minister for Home Affairs and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2019] FCAFC 63
Decision Date

CaseChat Overview and Summary

In the case of DOB18 v Minister for Home Affairs, the appellant, a non-citizen, challenged the decision of the Minister for Home Affairs to cancel their visa under section 501BA of the Migration Act 1958 (Cth). The appellant argued that the Minister failed to consider relevant information regarding Australia's non-refoulement obligations and that this constituted a jurisdictional error. The appeal was dismissed by the court, which found that the Minister's decision was not flawed and that non-refoulement considerations would be considered in any future protection visa application.

The central legal issues in the case revolved around whether the Minister had fallen into jurisdictional error by not determining whether non-refoulement obligations were owed to the appellant and whether non-refoulement considerations would necessarily be considered in any future protection visa application. The court also examined whether the primary judge had erred in relying on different stages of decision-making when considering harm, the risk of harm and hardship, and the consideration of non-refoulement obligations.

The court reasoned that the Minister's decision to cancel the appellant's visa was not a jurisdictional error, as the appellant was not barred from subsequently applying for a protection visa. The court held that any future application would be considered in light of Australia's non-refoulement obligations. Furthermore, the court found that the primary judge had not erred in distinguishing between considering harm, the risk of harm and hardship, and the consideration of non-refoulement obligations. The court also noted that the Minister had not fallen into jurisdictional error in making the decision outside a reasonable time.

In conclusion, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of and incidental to the appeal. The court found that the Minister's decision to cancel the appellant's visa was not a jurisdictional error, as non-refoulement considerations would be considered in any future protection visa application. The court also held that the primary judge had not erred in distinguishing between different stages of decision-making.

Orders

Orders of the court

1. The appeal be dismissed.

2. The Appellant pay the First Respondent’s costs of and incidental to the appeal, to be taxed 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Here, the Minister revoked the Tribunal’s decision under s 501CA(4) nearly 15 months after it had made its decision. The Minister made a deliberate decision not to seek any new information beyond what the Tribunal had said about the appellant’s current circumstances and, in particular, Australia’s non-refoulement obligations in respect of him. In those circumstances, when considering whether the cancellation of the appellant’s visa was in the national interest, the Minister had to have regard to the most up to date material before him as to Australia’s non-refoulement obligations in respect of the appellant.Conclusion The Minister therefore failed to consider a relevant consideration, being the most up to date information before him, that Australia owed non-refoulement obligations in respect of the appellant. That failure was a jurisdictional error. Accordingly, I would allow the appeal, quash the decision and order the Minister to pay the appellant’s costs. The Court is grateful to Counsel who appeared pro bono for the appellant on a referral certificate issued by the Court. It was the American novelist, Joseph Heller, who inspired, via the title of his novel, “Catch 22” and his highlighting in it of the paradoxes presented in wartime, military aviation service, the taking up into the English language in the 20th century of the expression of that same name. This expression, “Catch 22” is now defined by the Oxford Dictionary to mean a situation “which cannot be resolved because the conditions necessary for its resolution are paradoxical or conflicting. Also more generally: a situation in which a favourable or successful outcome is impossible; a no-win situation, a tricky or intractable problem or dilemma”. “Catch 22” is an accurate and pithy way of describing a proposition that lies at the heart of the appellant’s submissions. In giving his reasons for cancelling the appellant’s visa under s 501BA of the Migration Act 1958 (Cth) (the Act), the Minister voiced an understanding, the correctness of which was upheld by the learned primary judge, that he was not obliged to consider the subject of the appellant’s expulsion or return or “refoulement” (to adopt the international refugee law term, derived from diplomatic French) to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. That was because the appellant was not barred from subsequently applying for a protection visa and the subject of his refoulement would then arise for consideration. The appellant submitted that, in making his cancellation decision in the national interest, the Minister had chosen to advert to risk to the community and had concluded that he presented a risk. That same subject, so the appellant submitted, was a relevant consideration in relation to whether or not he was entitled to be granted a protection visa. Thus, so he submitted, even though he could later apply for such a visa, it was inevitable that any later application must fail, irrespective of whatever conclusion was reached as to Australia’s having a protection obligation to him, based on a well-founded fear of persecution if returned. That was said to be the consequence of the conclusion already reached by the Minister with respect to risk; hence the attraction of the description, “Catch 22”.

Ratio Decidendi

Legal Principle Established

The 2017 amendment to s 193(1)(a)(iv), to include cancellations under s 501BA, had the effect of extending the reach of s 198(2A) to non-citizens whose visas had been cancelled under s 501BA. That section provided, relevantly:(2A) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:(a) the non-citizen is covered by subparagraph 193(1)(a)(iv); and(b) since the Minister’s decision (the original decision) referred to in subparagraph 193(1)(a)(iv), the non citizen has not made a valid application for a substantive visa that can be granted when the non citizen is in the migration zone; (italic emphasis in original; bold emphasis added) Thus, s 198(2A) contemplates that, after the Minister personally cancels a visa under s 501BA, a staged decision-making process can occur if the non-citizen is able to, and does, make a valid application for a substantive visa that he or she can be granted. The Explanatory Memorandum for the Bill that enacted the 2017 amendment inserting a reference to s 501BA into s 193(1)(a)(iv) explained (in par 26):This amendment would mean that a non-citizen who has had a visa cancelled by the Minister personally under section 501BA will be unable to apply for a further visa while they remain in the migration zone, except for a protection visa, or a visa specified in the regulations for the purposes of this section (currently a Bridging R (Class WR) visa is specified). (emphasis added)Consideration It is important to understand how the power under s 501BA can be exercised. In Graham v Minister for Immigration and Border Protection (2017) 347 ALR 350 at 363-364 [57], Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ said that the concept of the national interest in s 501(3)(d) (which is an analogue of s 501BA(2)(b)) “although broad and evaluative, is not unbounded.” They said:And the statutory discretion enlivened on fulfilment of those statutory conditions must in each case be exercised by the Minister “according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself” [R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189, citing Sharp v Wakefield [1891] AC 173 at 179. See Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158]”. (emphasis added) The power conferred on the Minister personally in s 501BA is exceptional. That is because the time at which he can exercise that power arises only after two previous decision-makers have each exercised separate powers under the Act. Those anterior powers were, first, to cancel the visa in question under s 501(3A), because a delegate of the Minister was satisfied both that the visa holder did not pass the character test (relevantly, in a case like the appellant’s, because he or she had a substantial criminal record within the meaning of s 501(6)(a) and (7)) and that the cancellation was in the national interest, and, secondly, to revoke that cancellation under s 501CA(4), because another delegate or the Tribunal (see s 501BA(1)) was satisfied, after the non-citizen made representations in accordance with s 501CA, that the non-citizen passed the character test or there was another reason why the decision under s 501(3A) should have been revoked. Only in those circumstances can the Minister exercise his power to cancel the visa under s 501BA.