DQM18 v Minister for Home Affairs

This appeal involved the appellant, a person born in 1989 with a disputed birthplace, either South Sudan or Khartoum, Sudan, and his challenge against the decision of the Assistant Minister for Home Affairs not to revoke the cancellation of his visa. The appellant's visa was cancelled under the Migration Act 1958 (Cth) due to his substantial criminal record, and he sought judicial review of the Assistant Minister's decision. The court had to determine whether the Assistant Minister failed to perform the requisite statutory task by not meaningfully considering various representations made by the appellant, failing to determine the country to which the appellant would be returned, and not considering that indefinite detention would be a legal consequence of the non-revocation of the cancellation of the appellant's visa. The court also had to decide if any error was material to the exercise of power and therefore a jurisdictional error.

The court found that the Assistant Minister was not required to make findings on the speculations presented by the appellant, such as the risks of physical harm if returned to Sudan or South Sudan. The court held that it was open to the Assistant Minister to deal with the appellant's contention by accepting or rejecting it, or by reasoning that even if the appellant would be subjected to risks of physical harm, that (either alone or in light of other considerations, such as his record of violent criminality) was not sufficient to constitute "another reason" why the Cancellation ought to be revoked. The court concluded that the Assistant Minister's failure to make findings on the speculations did not amount to a jurisdictional error.

1. The appellant have leave to rely on the amended notice of appeal filed on 4 November 2019.
2. The appeal be allowed with costs, such costs to be payable directly to counsel for the appellant in accordance with r 4.19(3) of the Federal Court Rules 2011 (Cth).
3. The orders made by this Court on 7 June 2019 are set aside, and in lieu thereof:
(a) An order in the nature of certiorari be issued to the Assistant Minister for Home Affairs quashing the decision made on 3 July 2018 under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the decision made on 4 May 2016 under s 501(3A) of the Migration Act 1958 (Cth) to cancel the appellant’s Class XB Subclass 200 Refugee (Permanent) visa;
(b) The matter be remitted to the Minister for the making of a decision under s 501(CA)(4) according to law;
(c) The respondent pay the appellant’s costs of the application for judicial review.