DVE18 v Minister for Home Affairs - [2020] FCAFC 83

FEDERAL COURT OF AUSTRALIA
DVE18 v Minister for Home Affairs [2020] FCAFC 83

Appeal from: DVE18 v Minister for Home Affairs [2019] FCA 1389

File number: NSD 1701 of 2019

Judges: PERRAM, CHARLESWORTH AND STEWART JJ

Date of judgment: 14 May 2020

Catchwords: MIGRATION – appeal from orders dismissing application for judicial review of a migration decision – respondent Minister refusing to grant the appellant a visa in the exercise of the power conferred by s 501(1) of the Migration Act 1958 (Cth) – whether appellant made a claim that his wife and child would be at risk of harm if the visa was refused so as to give rise to an obligation in the Minister to consider it – whether Minister in fact considered such a claim – whether such failure amounted to jurisdictional error in the circumstance of the case – whether breach of rules of procedural fairness – whether constructive failure on the part of the Minister to exercise the jurisdiction conferred by s 501(1)

Legislation:
Migration Act 1958 (Cth) ss 5H, 46, 54, 55, 474, 476A, 499, 501, 501G

Migration Regulations 1994 (Cth) cl 201.211

Cases cited:
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352

Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321

DVE18 v Minister for Home Affairs [2019] FCA 1389

Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628

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

Kioa v West (1985) 159 CLR 550

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132

Date of hearing: 11 February 2020

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 65

Counsel for the Appellant: Mr D Hooke SC with Mr S Lawrence

Solicitor for the Appellant: Hearn Legal

Counsel for the Respondent: Mr G Kennett SC with Ms K Hooper

Solicitor for the Respondent: Australian Government Solicitor

ORDERS

NSD 1701 of 2019

BETWEEN:
DVE18

Appellant

AND:
MINISTER FOR HOME AFFAIRS

Respondent

JUDGES:

PERRAM, CHARLESWORTH AND STEWART JJ

DATE OF ORDER:

14 MAY 2020

THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The orders made on 30 August 2019 in NSD 1318 of 2018 be set aside.
3.A writ in the nature of certiorari issue quashing the decision of the respondent to refuse to grant the appellant an In-Country Humanitarian (Class XB) visa.
4.The appellant’s application for an In-Country…

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

Case: [2020] FCAFC 83
Decision Date: 14 May 2020

CaseChat Overview and Summary

In the case of DVE18 v Minister for Home Affairs, the appellant challenged the decision of the Minister for Home Affairs to refuse his application for an In-Country Humanitarian visa under section 501 of the Migration Act 1958. The appellant argued that the Minister failed to properly consider his claims that his wife and child would be at risk of harm if the visa was refused, and that this omission constituted a jurisdictional error and a breach of procedural fairness. The dispute was heard and determined in the Federal Court of Australia.

The central legal issues before the court were whether the appellant's claims about the risk to his family constituted a sufficient basis for the Minister to consider them, whether the Minister actually considered such claims, and if the failure to do so amounted to a jurisdictional error or procedural unfairness. Additionally, the court had to consider whether the Minister's failure to consider the appellant's claims amounted to a constructive failure to exercise the jurisdiction conferred by section 501(1).

The court found that the appellant's claims regarding the risk to his family members were indeed relevant and should have been considered by the Minister. The court held that the Minister's failure to consider these claims amounted to a jurisdictional error. The court further determined that this error was not trivial and necessitated the quashing of the Minister's decision. Consequently, the appeal was allowed, and the orders made on 30 August 2019 were set aside. The court issued a writ of certiorari to quash the Minister's decision and remitted the appellant's application for an In-Country Humanitarian visa back to the Minister for reconsideration in accordance with the law.

Orders

Orders of the court

1. The appeal is allowed.

2. The orders made on 30 August 2019 in NSD 1318 of 2018 be set aside.

3. A writ in the nature of certiorari issue quashing the decision of the respondent to refuse to grant the appellant an In-Country Humanitarian (Class XB) visa.

4. The appellant’s application for an In-Country Humanitarian (Class XB) visa be remitted to the respondent to be determined in accordance with the law.

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

The appellant made further submissions in response to a further invitation issued by the Department later in 2016. Nothing turns on the content of the latter submissions for the purposes of this appeal.THE MINISTER’S DECISION The Minister provided a written record of his decision in compliance or purported compliance with s 501G of the Act. The reasons disclose that the Minister had regard to non-disclosable material that had not been provided to the appellant. The Minister said that the non-disclosable material was relevant to the question of whether the appellant passed the character test and also to the exercise of the residual discretion to refuse to grant the visa. The non-disclosable material was said to meet the definition of that phrase in s 5H of the Act. No point is taken on this appeal as to whether the information properly fell within that definition. The information is not before this Court. The Minister concluded that the appellant had an association with the Taliban involving some sympathy with its suspected criminal activities. The Minister said that this “suspected association” had a negative bearing on the appellant’s character. Under the heading “Impact on Family Members” the Minister said (at [38]):I have considered that [the appellant’s] wife and minor child are dependant applicants on his visa application, and that a decision to refuse [the appellant’s] visa would also refuse the grant of a visa to his wife and minor child. The Minister went on say that he had considered the appellant’s claims that he was at risk of retribution from insurgents in Afghanistan due to his role in assisting Coalition forces. He said that in doing so he had had considered the non-disclosable information, the statements that had been made on the appellant’s behalf and open source information concerning the dangers faced by interpreters in Afghanistan. The Minister referred to the fact that the appellant had been certified as a person who was at risk and so impliedly accepted that he was a person who fulfilled the criterion in cl 201.211(1A) of the Regulations. Consistent with that certification, the Minister accepted that by remaining in Afghanistan the appellant “has a legitimate fear for his safety as a direct result of his former employment as an interpreter for the Coalition forces” (at [41] – [44]). The Minister concluded:45.Having given full consideration to all of the information before me in this case, I found that [the appellant] does not pass the character test by virtue of subsection 501(6)(b) of the Act and he has not satisfied me that he passes the character test. I also considered the countervailing considerations in this case, including the impact on [the appellant’s] family members and the risk to [the appellant’s] safety should his visa application be refused. I found that the considerations favouring grant are outweighed by the concerns for the protection of the Australian community and the expectations of the Australian community and I have decided to exercise my discretion to refuse to grant [the appellant’s] application for an In-Country Humanitarian (subclass 201) visa under subsection 501(1) of the Act.GROUNDS OF APPEAL

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	DVE18 v Minister for Home Affairs [2019] FCA 1389
File number:	NSD 1701 of 2019
Judges:	PERRAM, CHARLESWORTH AND STEWART JJ
Date of judgment:	14 May 2020
Catchwords:	MIGRATION – appeal from orders dismissing application for judicial review of a migration decision – respondent Minister refusing to grant the appellant a visa in the exercise of the power conferred by s 501(1) of the Migration Act 1958 (Cth) – whether appellant made a claim that his wife and child would be at risk of harm if the visa was refused so as to give rise to an obligation in the Minister to consider it – whether Minister in fact considered such a claim – whether such failure amounted to jurisdictional error in the circumstance of the case – whether breach of rules of procedural fairness – whether constructive failure on the part of the Minister to exercise the jurisdiction conferred by s 501(1)
Legislation:	Migration Act 1958 (Cth) ss 5H, 46, 54, 55, 474, 476A, 499, 501, 501G Migration Regulations 1994 (Cth) cl 201.211
Cases cited:	Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 DVE18 v Minister for Home Affairs [2019] FCA 1389 Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132
Date of hearing:	11 February 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	65
Counsel for the Appellant:	Mr D Hooke SC with Mr S Lawrence
Solicitor for the Appellant:	Hearn Legal
Counsel for the Respondent:	Mr G Kennett SC with Ms K Hooper
Solicitor for the Respondent:	Australian Government Solicitor

JUDGES:	PERRAM, CHARLESWORTH AND STEWART JJ
DATE OF ORDER:	14 MAY 2020