MIGRATION – application for judicial review of a decision of the Minister for Home Affairs not to revoke a visa cancellation – where visa was mandatorily cancelled as the applicant did not pass the character test by reason of his substantial criminal record – where applicant made a representation that he was de facto stateless – whether the Minister failed to consider a legal consequence of non‑revocation – where applicant made non-refoulement claims – where the Minister stated that non-refoulement obligations would be considered in the course of processing a protection visa application – whether the Minister failed to consider the applicant’s representations as a reason why the original decision should be revoked – whether the Minister failed to understand the law, or to apply the law correctly, in determining the seriousness of the applicant’s past offending – whether the Minister’s decision was affected by apprehended bias
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, signed 31 January 1967, 606 UNTS 267 (entered into force for Australia 13 December 1973)
[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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AGLC
DYY18 v Minister for Home Affairs [2019] FCA 1901
Case
[2019] FCA 1901
Decision Date
CaseChat Overview and Summary
The applicant, DYY18, sought a judicial review of the Minister for Home Affairs' decision not to revoke a visa cancellation made under section 501(3A) of the Migration Act 1958 (Cth). The visa was cancelled due to the applicant's failure to pass the character test, primarily because of his substantial criminal record. The applicant, who claimed to be de facto stateless, argued that the Minister failed to consider several factors in making the decision, including the potential legal consequences of non-revocation and his non-refoulement claims. The Minister responded that non-refoulement obligations would be considered during the processing of a protection visa application.
The court identified several legal issues to be decided, including whether the Minister failed to consider a legal consequence of non-revocation, whether the Minister failed to consider the applicant's representations as a reason why the original decision should be revoked, and whether the Minister failed to understand or apply the law correctly in determining the seriousness of the applicant’s past offending. Additionally, the court examined whether the Minister's decision was affected by apprehended bias.
The court held that the Minister's decision was flawed for several reasons. Firstly, the Minister failed to consider the legal consequences of non-revocation. Secondly, the Minister did not properly consider the applicant's representations, particularly his non-refoulement claims and his de facto statelessness. Thirdly, the Minister did not correctly understand or apply the law in assessing the seriousness of the applicant's past offending. The court found that the Minister's decision was affected by apprehended bias due to the Minister's previous involvement in the applicant's case. Consequently, the court set aside the decision not to revoke the visa cancellation and ordered the respondent to pay the applicant's costs of the proceeding.
Orders
Orders of the court
1. The application for an extension of time be granted.
2. The decision of the respondent made on 27 June 2018 not to revoke a visa cancellation decision originally made under s 501(3A) of the Migration Act 1958 (Cth) be set aside.
3. The respondent pay the applicant’s costs of the proceeding 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
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Section 501CA of the Act relevantly provides:Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.(2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:(a)would be the reason, or a part of the reason, for making the original decision; and(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.(3) As soon as practicable after making the original decision, the Minister must:(a)give the person, in the way that the Minister considers appropriate in the circumstances:(i) a written notice that sets out the original decision; and(ii) particulars of the relevant information; and(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.(4) The Minister may revoke the original decision if:(a)the person makes representations in accordance with the invitation; and(b) the Minister is satisfied:(i)that the person passes the character test (as defined by section 501); or(ii)that there is another reason why the original decision should be revoked....Background The applicant’s criminal conduct in Australia between 2015 and 2016 was affronting. It left victims who, I have no doubt, remain deeply traumatised by his actions. His first victims included a 13 year old girl. In 2015, the applicant, then aged 18 years, travelled to Cranbourne station in Melbourne together with some other co-offenders who were 15 or 16 years of age. They followed a group of children and then surrounded two younger boys. One of these boys was punched in the jaw by a co-offender; another co-offender demanded that the boys hand over their phone and wallets. Some 13 year old girls tried to assist the boys. The co‑offenders sexually assaulted one of these girls. The applicant intervened, as if to protect the girl. He ushered her away. After squeezing her bottom he produced his erect penis; he grabbed her hand and made her masturbate him. He encouraged her to do so with the promise of the return of the stolen phones. For these offences (two counts of an indecent act with a child under the age of sixteen), described by the sentencing judge as “appalling, predatory and sinister”, the applicant was sentenced to four and eight months of imprisonment. He was also found guilty of two counts of robbery. He was sentenced to two months’ imprisonment on each count. His second victims were a family living in East Brighton, a suburb of Melbourne. In the middle of the night, the father of this family was awoken by loud bangs. He came upon three African males in his house. A fight broke out. The males then left the house and were joined by the applicant. The intruders started throwing rocks at the father. The applicant may also have done this. The father then saw one of the intruders driving his BMW motor vehicle down the driveway. He tried to open the car door but was dragged along as the car sped off. He suffered injuries. Following the execution of a search warrant at the applicant’s home, four iPhones, one iMac and one Toshiba laptop were recovered. Each of these items had been traced to their owners. The applicant said he had been given these by one of the intruders.