FEDERAL COURT OF AUSTRALIA
DOB18 v Minister for Home Affairs [2018] FCA 1523
File number: NSD 694 of 2018 Judge: GRIFFITHS J Date of judgment: 17 October 2018 Catchwords: MIGRATION – where the Minister for Home Affairs (Minister) overturned a decision of the Administrative Appeals Tribunal and cancelled the applicant’s visa under s 501BA of the Migration Act 1958 (Cth) (the Act) – whether the Minister’s cancellation decision was based on an incorrect understanding of the law that non-refoulement obligations would necessarily be fully considered in assessing any future visa application by the applicant – whether the Minister’s satisfaction that it was in the national interest to cancel the applicant’s visa was a satisfaction that was obtained reasonably – whether the Minister failed to take into account a relevant consideration that when the applicant was granted a protection visa in 2006, the Minister’s delegate had found that the then Minister was satisfied that it was in the national interest to grant the applicant the visa – whether the Minister’s decision to cancel the applicant’s visa was legally unreasonable in that the Minister concluded there remained an ongoing risk and possibility of the applicant reoffending, when it was alleged that this conclusion did not flow logically from other findings – Held: amended application dismissed, with costs Legislation: Migration Act 1958 (Cth), ss 36, 65, 197C, 195A, 197AB, 197C, 198, 499, 501(3A), 501(6)(a), 501(7)(c), 501BA, 501CA, 501E, 501G
Migration Regulations 1994 (Cth), Sch 2, reg 785.227
Cases cited: Ali v Minister for Immigration and Border Protection [2018] FCA 650
AQM18 v Minister for Immigration and Border Protection [2018] FCA 944
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; 118 FCR 326
Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68
Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1
NKWF v Minister for Immigration and Border Protection [2018] FCA 409
Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620
Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391
Date of hearing: 3 October 2018 Date of last submissions: 9 October 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number…
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- AGLC
- DOB18 v Minister for Home Affairs [2018] FCA 1523
- Case
- [2018] FCA 1523
- Decision Date
CaseChat Overview and Summary
The case of DOB18 v Minister for Home Affairs involves the applicant, a national of [redacted] who has resided in Australia since 2000, challenging the Minister’s decision to cancel his visa under s 501BA of the Migration Act 1958 (Cth). The applicant had previously been granted a protection visa in 2006 due to his homosexuality, but his visa was cancelled in 2018 following his conviction for drug-related offences. The applicant contests the Minister's decision to cancel his visa on the grounds that it was based on an incorrect understanding of the law regarding Australia's non-refoulement obligations, and that the Minister's satisfaction that the cancellation was in the national interest was not obtained reasonably. The applicant also argues that the Minister failed to consider relevant factors, such as the Minister’s previous satisfaction that it was in the national interest to grant him a protection visa in 2006.
The court was required to determine whether the Minister’s decision to cancel the applicant’s visa was legally sound. This involved examining the Minister's interpretation of the national interest and non-refoulement obligations, as well as whether the decision was made in a manner that was procedurally fair and took into account all relevant considerations. The court assessed the Minister’s statement of reasons for the decision, particularly focusing on the Minister’s assessment of the national interest and the handling of the applicant’s non-refoulement obligations.
The court found that the Minister’s decision was legally sound. The Minister correctly interpreted the national interest by considering the seriousness and recidivism of the applicant’s criminal conduct. The Minister also reasonably concluded that Australia’s non-refoulement obligations would be considered in any future visa application by the applicant. The court rejected the applicant’s argument that the Minister had failed to consider relevant factors, noting that the Minister had exercised his power in accordance with the statutory provisions and had provided a detailed statement of reasons.
The amended application was dismissed with costs. The court ordered that the applicant pay the respondent’s costs as agreed or assessed. This outcome reinforces the principle that the Minister’s decision to cancel a visa under s 501BA of the Migration Act is subject to judicial review, but the court will uphold the decision if it is legally sound and based on a proper consideration of relevant factors.
The court was required to determine whether the Minister’s decision to cancel the applicant’s visa was legally sound. This involved examining the Minister's interpretation of the national interest and non-refoulement obligations, as well as whether the decision was made in a manner that was procedurally fair and took into account all relevant considerations. The court assessed the Minister’s statement of reasons for the decision, particularly focusing on the Minister’s assessment of the national interest and the handling of the applicant’s non-refoulement obligations.
The court found that the Minister’s decision was legally sound. The Minister correctly interpreted the national interest by considering the seriousness and recidivism of the applicant’s criminal conduct. The Minister also reasonably concluded that Australia’s non-refoulement obligations would be considered in any future visa application by the applicant. The court rejected the applicant’s argument that the Minister had failed to consider relevant factors, noting that the Minister had exercised his power in accordance with the statutory provisions and had provided a detailed statement of reasons.
The amended application was dismissed with costs. The court ordered that the applicant pay the respondent’s costs as agreed or assessed. This outcome reinforces the principle that the Minister’s decision to cancel a visa under s 501BA of the Migration Act is subject to judicial review, but the court will uphold the decision if it is legally sound and based on a proper consideration of relevant factors.
Orders
Orders of the court
1. The amended originating application be dismissed.
2. The applicant pay the respondent’s costs, 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 amended originating application will be dismissed, with costs.Background matters summarised The applicant is a national of [redacted] and is 39 years old. He has lived in Australia since 2000, having arrived here when he was aged 21. In 2004, he applied for a protection visa and claimed that he would be persecuted in his home country based on his homosexuality. On 16 November 2006, he was granted a Class XA subclass 785 temporary protection visa, due to his stated homosexuality. In November 2009, this visa was replaced by a Class CD subclass 851 Resolution of Status visa. It was this visa which the Minister cancelled on 15 February 2018. On 27 April 2016, the applicant’s then visa was mandatorily cancelled by the Minister’s delegate acting under s 501(3A) of the Act after the applicant was convicted in the District Court of New South Wales of “supply prohibited drug greater than indictable quantity (not cannabis)” and sentenced to imprisonment for two years and eight months. Another Ministerial delegate subsequently declined to revoke that cancellation decision under s 501CA(4). The non-revocation decision was appealed to the AAT which, on 24 November 2016, set aside the delegate’s decision and ordered that the visa cancellation decision be revoked. In light of the AAT’s decision, the applicant was released from immigration detention. As noted above, it was fifteen months later (on 15 February 2018) that the Minister made his decision under s 501BA to cancel the applicant’s visa. It took another six weeks for the Department to notify the applicant of the Minister’s decision. These delays are unexplained.Relevant statutory provisions Section 501BA provides:501BACancellation of visa—setting aside and substitution of non adverse decision under section 501CA(1) This section applies if:(a) a delegate of the Minister; or(b) the Administrative Appeals Tribunal;makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.Action by Minister- natural justice does not apply(2)The Minister may set aside the original decision and cancel a visa that has been granted to the person if:(a)the Minister is satisfied that the person does not pass the character test because of the operation of:(i)paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or(ii) paragraph 501(6)(e); and(b)the Minister is satisfied that the cancellation is in the national interest.(3)The rules of natural justice do not apply to a decision under subsection (2).Minister’s exercise of power(4)The power under subsection (2) may only be exercised by the Minister personally.Decision not reviewable under Part 5 or 7(5) A decision under subsection (2) is not reviewable under Part 5 or 7.Note: For notification of decisions under subsection (2), see section 501G. The applicant does not dispute the Minister’s finding that he did not pass the character test having regard to the combined effect of ss 501(6)(a) and 501(7)(c). This proceeding relates to the applicant’s claims that the Minister fell into jurisdictional error in concluding that cancellation of his visa is in the national interest as well as in the Minister’s reasoning with respect to Australia’s non-refoulement obligations. The Minister’s statement of reasons
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Section 501BA provides:501BACancellation of visa—setting aside and substitution of non adverse decision under section 501CA(1) This section applies if:(a) a delegate of the Minister; or(b) the Administrative Appeals Tribunal;makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.Action by Minister- natural justice does not apply(2)The Minister may set aside the original decision and cancel a visa that has been granted to the person if:(a)the Minister is satisfied that the person does not pass the character test because of the operation of:(i)paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or(ii) paragraph 501(6)(e); and(b)the Minister is satisfied that the cancellation is in the national interest.(3)The rules of natural justice do not apply to a decision under subsection (2).Minister’s exercise of power(4)The power under subsection (2) may only be exercised by the Minister personally.Decision not reviewable under Part 5 or 7(5) A decision under subsection (2) is not reviewable under Part 5 or 7.Note: For notification of decisions under subsection (2), see section 501G. The applicant does not dispute the Minister’s finding that he did not pass the character test having regard to the combined effect of ss 501(6)(a) and 501(7)(c). This proceeding relates to the applicant’s claims that the Minister fell into jurisdictional error in concluding that cancellation of his visa is in the national interest as well as in the Minister’s reasoning with respect to Australia’s non-refoulement obligations. The Minister’s statement of reasons As required by s 501G, the Minister provided the applicant with a written notice which set out the reasons for his decision. The statement of reasons is 12 pages long. It explains in some detail why the Minister was satisfied that the applicant did not pass the character test and why the Minister was satisfied that it was in the national interest to cancel the applicant’s visa. The statement also contains the Minister’s reasons why he did not exercise his residual discretion under s 501BA not to cancel the visa even though the Minister was satisfied both that the applicant did not pass the character test and that it was in the national interest to cancel his visa. The matters addressed by the Minister as being relevant to this residual discretion included the risk which the applicant posed to the Australian community through reoffending; the best interests of the applicant’s three children; the expectations of the Australian community; international non-refoulement obligations; the applicant’s ties to Australia and the extent of impediments if he were returned to [redacted]. It is desirable to set out those parts of the Minister’s statement of reasons which figure prominently in the judicial review challenge. Those parts relate to the Minister’s consideration of the “national interest” and his reasoning regarding Australia’s non-refoulement obligations (omitting footnotes): NATIONAL INTEREST15.I then considered the question of whether cancellation of [the applicant’s] visa is in the national interest, recognising that this question is separate and distinct from the question of whether or not [the applicant] passes the character test because of the operation of, in this case, paragraph 501(6)(a) of the Act on the basis of paragraph 501(7)(c) of the Act.16.'National interest' is not defined for the purposes of s501BA of the Act. Generally, courts have been reluctant to attempt to define the meaning of national interest in statutory contexts, but the national interest has been determined to be a different concept to the public interest.17.In Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220, at [86], the Full Federal Court noted that the question of what is or is not in the national interest is entrusted by the legislature to the Minister to determine according to his or her own satisfaction, which must be attained reasonably. The court said:The Minister in considering the national interest under s 501A(2) may properly have regard to the circumstances which underpin the failure to satisfy him that an applicant for a visa passes the character test. There may be circumstances in which the seriousness of a person's criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest.18.I find that matters of national interest could include, amongst other things, the seriousness of [the applicant’s] criminal conduct, having regard to the circumstances and nature of the conduct and the dispositions imposed by the courts. I note [the applicant’s] criminal history includes the supply of prohibited drugs greater than an indictable quantity, which I consider to be serious.19.On 11 July 2014, [the applicant] was convicted in the District Court of New South Wales of the following offences, for which he was sentenced, concurrently, as shown:ŸSupply prohibited drug greater than indictable quantity (not cannabis) (cocaine) – two years and eight months' imprisonmentŸSupply prohibited drug greater than indictable quantity (not cannabis) (ketamine) – 11 months' imprisonment.Three further offences were taken into account on Form 1 (in sentencing on the above supply cocaine charge), namely possess prohibited drug (methamphetamine), deal with property suspected of proceeds of crime ($57,000) and restricted substance sold by non-wholesaler.20.According to the sentencing remarks, the cocaine weighed 27.8 grams and had a purity of 48.8 per cent. The ketamine weighed 30.1 grams and had a purity of 76 per cent. In addition, the methamphetamine weighed 3.5 grams and had a purity of 82.5 per cent.21.l have had regard to the 2014 sentencing Judge's statements that [the applicant] had been involved in 'substantial drug trafficking' and both the amount of money and the quantities of drugs reflected a financial return to him 'much greater' than a person selling for their personal use. The Judge also stated that [the applicant] was ‘no street-level user/dealer; he was well above that in the hierarchy of drug trafficking’. I also note the Judge's remarks that [the applicant] had offended while on a good behaviour bond for the same type of offences.22.I have taken into account that the Judge found [the applicant’s] offending to be towards the lower end of the mid-range of objective seriousness.23.I accept these remarks are reflective of the seriousness with which the Judge carrying out the sentencing task viewed [the applicant’s] offending. I find [the applicant’s] offending to be serious.24.I note [the applicant’s] criminal history includes further convictions for drug offences as well as dishonesty and driving offences, being possess prohibited drug (2011, 2007, 2006), possess/attempt to prescribed restricted substance (2007), supply a prohibited drug (2006), goods in personal custody suspected being stolen (not motor vehicle) (2011, 2006), exceed speed (2007) and never licensed person drive vehicle on road (2005). Sentences varied from· bonds of up to two years, a community service order, fines of up to $1500 and licence disqualification.25.I also note the AAT decision record of 24 November 2016 stated [the applicant] had speeding offences recorded in 2013 and was given a good behaviour bond in relation to his licence on 19 November 2013.26.I find [the applicant’s] recidivism contributes to the seriousness of his conduct, particularly as he has been given multiple opportunities by the court to correct his behaviour, including non-custodial sentences as early as 2006, yet he has continued to reoffend. I also find there to be an upward trend of seriousness in relation [the applicant’s] offending, with his most recent offences pertaining to an involvement with drugs beyond that of personal use, as noted by the court from the amount of money and quantity of drugs involved.27.I find that the sentences of imprisonment [the applicant] received are a further indication of the seriousness of his offending. I note that in considering what disposition to impose, the sentencing Judge on 11 July 2014 stated the ‘only appropriate sentences are full-time custody’. Dispositions involving incarceration are the last resort in the sentencing hierarchy and I have considered the court, through its imposition in 2014 of a sentence of two years and eight months' imprisonment (taking into account Form 1 offences) and a sentence of eleven months' imprisonment, viewed his offending as serious.28.In considering the national interest, I note [the applicant’s] criminal history has involved the supply of illicit drugs to the community, included multiple instances of offending of a like nature and escalated in seriousness over time. Within this context I note and endorse the AAT's statements on 24 November 2016 that drug trafficking ‘is widely condemned’ and drug misuse has a ‘corrosive effect on drug users, their families, police, health services, and the wider community’. I also note [the applicant’s] offending has resulted in court dispositions of imprisonment of up to two years and eight months. I therefore find [the applicant’s] conduct to be of such seriousness as to found a satisfaction it is in the national interest to cancel his visa. …International non-refoulement obligations75.[The applicant] submits that he would face harm if returned to [redacted] and that he urgently seeks a 'non refoulement order.' I note also [the applicant’s] visa history, including grant of a Class XA subclass 785 Temporary Protection visa on 16 November 2006 due to his stated homosexuality.76.In his letter of 29 April 2016, [the applicant] stated he believed the view towards homosexuality in [redacted] was worse than in 2006 and his life would be in ‘very real danger’ if he returned there. [The applicant] further stated he would be targeted by Islamic extremists in [redacted]. [The applicant] attached two media articles to his letter to demonstrate relevant circumstances in [redacted], including a Sydney Morning Herald article dated [redacted] that reported on the fatal stabbing of the editor of [redacted] first LGBT magazine.77.[The applicant] raised similar fears in his personal details form dated 22 August 2014, noting he would be ‘killed (stoned to death) without a doubt’ if returned.78.The AAT, in its decision record of 24 November 2016, did not make a finding regarding [the applicant] and Australia's non-refoulement obligations. I note the AAT stated it was likely [the applicant] would face discrimination and persecution in [redacted] if his sexual orientation became known and suppressing his sexuality to avoid persecution would be an 'onerous burden'.79.I note that the effect of s501E(2) of the Act is that [the applicant] would not be prevented from lodging a protection visa application following a decision by me to cancel his current visa. 80.I consider that it is 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 which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application.81.My conclusion in this respect is based on my awareness that my 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. Furthermore, to reinforce this practice, I have given a direction under s499 of the Act (Direction 75) which, among other things, requires 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. I am therefore confident that [the applicant] would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.82.I have also considered [the applicant’s] claims of harm upon return to [redacted] 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, he would face hardship arising from his stated homosexuality were he to return to [redacted]. The alleged jurisdictional errors
Ratio Decidendi
Legal Principle Established
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