DVE18 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

DVE18 v Minister for Home Affairs [2019] FCA 1389

File number: NSD 1318 of 2018
Judge: MARKOVIC J
Date of judgment: 30 August 2019
Catchwords:

MIGRATION – application for an extension of time to file application for review of a decision of the Minister for Home Affairs (Minister) – whether the application had sufficient prospects of success – application allowed

MIGRATION – application for review of the Minister’s decision to refuse the applicant’s application for an Offshore Humanitarian visa Refugee and Humanitarian (Class XB) visa – where Minister not satisfied that applicant passed character test in s 501(1) of the Migration Act 1958 (Cth) (Act) – whether Minister failed to take into account physical safety of applicant’s wife and child and thereby denied the applicant procedural fairness and failed to undertake his statutory task – whether s 501(6) of the Act, properly construed, extends to conduct committed wholly outside Australia by a group not present in Australia – application dismissed

Legislation:

Acts Interpretation Act 1901 (Cth) s 21(1)(b)

Federal Courtof Australia Act 1976 (Cth) ss 37AF, 37AG, 37AI

Migration Act 1958 (Cth) ss 477A, 501(1), 501(6)

Cases cited:

Australian Securities Commission v Bank Leumi Le-Israel (1995) 134 ALR 101

Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588; [2017] FCA 929

Minister for Immigration and Border Protection v Egan [2018] FCA 1320

Minister for Immigrationand Border Protection v Sabharwal [2018] FCAFC 160

Rere v Minister for Immigration and Border Protection [2018] FCA 846

Sabharwal v Minister for Immigration and Border Protection (2018) 159 ALD 86; [2018] FCA 10

Date of hearing: 5 March 2019
Date of last submissions: 26 March 2019 (applicant)
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 87
Counsel for the Applicant: Mr S Prince SC and Mr S Lawrence
Solicitor for the Applicant:  Hearn Legal
Counsel for the Respondent: Mr G R Kennett SC
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

NSD 1318 of 2018
BETWEEN:

DVE18

Applicant

AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:

MARKOVIC J

DATE OF ORDER:

30 AUGUST 2019

THE COURT ORDERS THAT:

1.Pursuant to s 477A(2) of the Migration Act 1958 (Cth) (Act) the time for the making of an application pursuant to s 477A(1) of the Act in relation to the decision of the respondent made on 24 May 2018 is extended to 17 July 2018.

2.Grant leave to the applicant to file the amended originating application for review of a migration decision dated 26 February 2019 (Amended Application).

3.The Amended Application is dismissed.

4.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act), on the grounds set out in s 37AG(1)(c) of the FCA Act, all evidence and information tending to reveal the identity of the applicant, his wife and child be suppressed for a period of 70 years from…

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Details
Case
[2019] FCA 1389
Decision Date

CaseChat Overview and Summary

The case of DVE18 v Minister for Home Affairs involves an application by the applicant, DVE18, to the Federal Court of Australia for an extension of time to file an application for review of a decision made by the Minister for Home Affairs, the respondent. The Minister had refused the applicant’s application for an Offshore Humanitarian visa under the Migration Act 1958 (Cth). The applicant sought an extension of time to file an amended application for review, arguing that the Minister had failed to consider the physical safety of the applicant’s wife and child, thereby denying the applicant procedural fairness and failing to undertake his statutory task.

The legal issues before the court included whether the applicant’s application for an extension of time had sufficient prospects of success and whether the Minister’s failure to consider the safety of the applicant’s family constituted a jurisdictional error. The court considered the evidence provided by the applicant, including statutory declarations and a notification of changes in circumstances form, and examined whether these documents sufficiently established that the Minister had failed to consider the safety of the applicant’s family. The court found that the evidence did not establish that the Minister failed to have regard to a potential risk to the applicant’s family. Even if such a failure occurred, it did not amount to a jurisdictional error in the circumstances of this case.

The court allowed the application for an extension of time to file the amended application for review, noting that the order should operate for the duration of the applicant’s life, which was estimated to be 70 years. However, the court dismissed the amended application for review, finding that the Minister’s decision to refuse the visa application was not flawed. Consequently, the court ordered that the applicant pay the Minister’s costs.

Orders

Orders of the court

1. Pursuant to s 477A(2) of the Migration Act 1958 (Cth) (Act) the time for the making of an application pursuant to s 477A(1) of the Act in relation to the decision of the respondent made on 24 May 2018 is extended to 17 July 2018.

2. Grant leave to the applicant to file the amended originating application for review of a migration decision dated 26 February 2019 (Amended Application).

3. The Amended Application is dismissed.

4. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act), on the grounds set out in s 37AG(1)(c) of the FCA Act, all evidence and information tending to reveal the identity of the applicant, his wife and child be suppressed for a period of 70 years from the date of these Orders.

5. The applicant pay the respondent’s costs as agreed or taxed.

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

An order made under s 37AF operates for the period decided by the Court and specified in the order. In deciding on the period, the Court must ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made: s 37AJ of the FCA Act. While not addressed in his original submissions in support of the application for the order pursuant to s 37AF of the FCA Act, the applicant subsequently informed the Court that in his opinion the order should remain for the duration of his natural life and, given his age, should be in place for 70 years. The Minister considered that the issue of duration of any order was a matter for the applicant. In light of the circumstances in which the order is sought, I accept that for it to achieve the purpose for which it is made, it should operate for the duration of the applicant’s life and thus a period of 70 years as submitted by the applicant is appropriate. CONCLUSION In light of the matters set out above I will make orders extending the time for the filing of the applicant’s Amended Application and dismissing the Amended Application, and an order pursuant to s 37AF of the FCA Act substantially in the terms sought by the applicant. The applicant was successful in obtaining an order for an extension of time but has been unsuccessful in obtaining the orders sought in his Amended Application. Given the way in which the proceeding was conducted with a focus by both parties on the grounds of the Amended Application and little or no time spent on the application for an extension of time, the applicant should pay the Minister’s costs. I will also make an order to that effect.

Ratio Decidendi

Legal Principle Established

The Minister, in effect, made two submissions in response. First, he submitted that the evidence does not establish a failure by the Minister to have regard to a potential risk to the applicant’s family. In the alternative, the Minister submitted that if he did fail to consider the safety of the applicant’s family, that failure did not amount to a jurisdictional error in the circumstances of this case. Consideration The applicant accepts that risk to the safety of his wife and child was not a mandatory relevant consideration in the exercise of the power under s 501(1) of the Act. Rather, as developed in his oral submissions, the applicant contends that the Minister failed to consider his claim that his wife and child were at risk, which he said amounted to a denial of natural justice and a failure by the Minister to undertake his statutory duty. It is convenient to first consider the material relied on by the applicant, by which he says the claim that his wife and child were at risk was made. That evidence commences with the Visa Application which unsurprisingly, given its date, only related to the applicant. Next are two letters of recommendation which pre-date the Visa Application, the applicant’s marriage and the birth of his child. To the extent that any of those documents refer to the applicant’s family and a risk to their safety as a result of the applicant working as an interpreter, I cannot infer that the “family” so referred to is or included the applicant’s wife and child. Those references may be to other unparticularised members of the family, although it is not apparent, on the material, who they were. What is clear is that given their date those documents cannot be taken to refer to the applicant’s wife and child. Contrary to the applicant’s submission, those documents speak as at their date and cannot be interpreted to refer to events that occurred subsequently. The applicant also referred to the notification of changes in circumstances form which he lodged on 17 June 2016, by which his wife and child were added to the Visa Application, and which he says should have been taken into account as part of the claims and submissions that he made. However, that the nature of the Visa Application changed in 2016 to include the applicant’s wife and child does not change the nature and effect of the documents brought into existence in 2013. The balance of the evidence relied on is included in the statutory declarations made by Captain Scanes, Lieutenant Colonel Hick and the applicant’s former colleague. Those statutory declarations were made, in the case of Captain Scanes, after the applicant was married and more than a year before the birth of the child, and in the case of Lieutenant Colonel Hick and the applicant’s former colleague, after the applicant was married and shortly before the birth of the child. The maker of each statutory declaration refers to the risk to the applicant’s life and that of his family as a result of his working as an interpreter.