FEDERAL COURT OF AUSTRALIA
ECE21 v Minister for Home Affairs [2023] FCAFC 52
Appeal from: ECE21 v Minister for Home Affairs [2021] FCA
1447
File number: WAD 26 of 2022 Judgment of: MORTIMER, COLVIN AND O'SULLIVAN JJ Date of judgment: 28 March 2023 Catchwords: MIGRATION – application for extension of time – appeal – judicial review – refusal to revoke mandatory cancellation of applicant's visa – likelihood of indefinite detention as a factor to be considered – whether factor clearly arose on the materials before the Minister – extension of time granted – leave to rely on amended proposed notice of appeal – appeal allowed Legislation: Migration Act 1958 (Cth) ss 197C, 198, 499, 501(3A), 501CA(4), 501G
Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)
Report 5 of 2021 [2021] AUPJCHR 43
Cases cited: Al‑Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562
AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27; (2019) 268 FCR 424
Commonwealth of Australia v AJL20 [2021] HCA 21; (2021) 273 CLR 43
ECE21 v Minister for Home Affairs [2021] FCA 1447
Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788
MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; (2021) 284 FCR 152
Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35; (2021) 283 FCR 525
Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510
O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 67 Date of hearing: 3 November 2022 Counsel for the Applicant: Ms B Tronson with Mr C Honnery Solicitor for the Applicant: Estrin Saul Lawyers and Migration Agents Counsel for the Respondent: Ms R Francois Solicitor for the Respondent: Australian Government Solicitor ORDERS
WAD 26 of 2022 BETWEEN: ECE21
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
ORDER MADE BY:
MORTIMER, COLVIN AND O'SULLIVAN JJ
DATE OF ORDER:
28 MARCH 2023
THE COURT ORDERS THAT:
1.The time in which an appeal can be brought from the Court’s orders made on 22 November 2021 be extended to 8 February 2022.
2.Leave be granted for the applicant to rely on the amended proposed notice of appeal annexed to the affidavit of Alice Louise Graziotti filed 26 September 2022.
3.The appeal be allowed.
4.Set aside the orders of the Court made on 22 November 2021 and, in lieu thereof, order:
(a)The application for judicial review be allowed.
(b)Set aside the…
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- Case
- [2023] FCAFC 52
- Decision Date
CaseChat Overview and Summary
The legal issues that the court was required to decide included whether the applicant had provided clear representations to the Minister about the likelihood of indefinite detention, and whether the Minister had properly considered this factor in making his decision. The court also had to consider whether the applicant's proposed new ground of appeal was an appropriate subject for an extension of time and leave to amend the notice of appeal. The court noted that the proposed ground of appeal was to the effect that the Minister had failed to consider the likelihood of indefinite detention, which was not advanced before the primary judge. Therefore, it sought to allege what is sometimes described as constructive error.
The court found that the applicant had clearly articulated the likelihood of indefinite detention in his representations to the Minister, and that the Minister had failed to properly consider this factor in making his decision. The court also found that the applicant's proposed new ground of appeal was an appropriate subject for an extension of time and leave to amend the notice of appeal. The court granted the extension of time and leave to amend the notice of appeal, and allowed the appeal. The court set aside the orders of the primary judge and ordered that the application for judicial review be allowed, the decision of the Minister be set aside, and the matter be remitted to the Minister for further consideration according to law. The court also ordered that the Minister pay the applicant's costs of the judicial review application and the appeal.
In summary, the court found that the applicant had clearly articulated the likelihood of indefinite detention in his representations to the Minister, and that the Minister had failed to properly consider this factor in making his decision. The court granted the applicant an extension of time and leave to amend the notice of appeal to raise a new ground of appeal, and allowed the appeal. The court set aside the orders of the primary judge and ordered that the application for judicial review be allowed, the decision of the Minister be set aside, and the matter be remitted to the Minister for further consideration according to law. The court also ordered that the Minister pay the applicant's costs of the judicial review application and the appeal.
Orders
Orders of the court
1. The time in which an appeal can be brought from the Court’s orders made on 22 November 2021 be extended to 8 February 2022.
2. Leave be granted for the applicant to rely on the amended proposed notice of appeal annexed to the affidavit of Alice Louise Graziotti filed 26 September 2022.
3. The appeal be allowed.
4. Set aside the orders of the Court made on 22 November 2021 and, in lieu thereof, order:
(a) The application for judicial review be allowed.
(b) Set aside the decision of the respondent made on 23 March 2021.
(c) Remit the applicant’s request for consideration of revocation of the visa cancellation decision made on 25 July 2018 to the respondent for further consideration according to law.
(d) The respondent pay the applicant’s costs of the judicial review application, to be fixed by way of a lump sum.
(e) In default of agreement between the parties on an appropriate lump sum, the question of an appropriate lump sum for the applicant’s costs be referred to a Registrar for determination.
5. The respondent pay the applicant’s costs of the application for an extension of time and of the appeal, to be fixed by way of a lump sum.
6. In default of agreement between the parties on an appropriate lump sum, the question of an appropriate lump sum for the applicant’s costs on the appeal be referred to a Registrar for determination.
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
Ratio Decidendi
Legal Principle Established
The applicant is a citizen of South Sudan who was a child soldier. After a number of years he escaped the army and eventually came to Australia as a refugee at the age of 26. His criminal offending in Australia commenced a few years later. In 2013 he committed a particularly serious crime of violence. He pleaded guilty to the offence of unlawfully causing grievous bodily harm with intent to do so and was sentenced to a term of imprisonment of 6 years and 10 months. As required by s 501(3A) of the Migration Act 1958 (Cth), his visa was cancelled. The applicant made representations to the Minister seeking the revocation of the visa cancellation in the exercise of the power conferred by s 501CA(4). On 23 March 2021, the Minister personally decided not to revoke the cancellation. The applicant sought judicial review in this Court. His application was dismissed: ECE21 v Minister for Home Affairs [2021] FCA 1447. He now seeks to bring an appeal. He needs an extension of time to do so. If an extension of time is granted, he seeks leave to amend the proposed notice of appeal to advance a single ground of appeal. It is to the effect that the Minister failed to consider the likelihood that the applicant would be detained indefinitely if the cancellation of his visa was not revoked. The ground that the applicant seeks to raise was not advanced before the primary judge. Therefore, it seeks to allege what is sometimes described as constructive error. The application for an extension of time and leave to amend to raise the new ground were considered at a hearing at which the submissions in support of the appeal ground and in opposition to the appeal were received against the possibility that the extension of time and leave to amend were both given. In the circumstances, we will refer to the parties as the applicant and the Minister and, for simplicity, to the proceedings themselves as an appeal.The applicant's main contentions The main contentions advanced by the applicant in support of the proposed appeal ground are:(1)the representations by the applicant to the Minister clearly articulated the likelihood of indefinite detention if his visa cancellation was not revoked or alternatively such likelihood clearly arose on the materials before the Minister; and(2)proper regard to the content of the Minister’s reasons for decision (Reasons) leads to the conclusion that those matters were ignored or overlooked by the Minister. The submissions in support of those main contentions tended to criticise the Reasons as failing to fully and meaningfully engage with the representations as to the likelihood of indefinite detention in circumstances where it was a likely consequence based upon the Minister's own findings set out in the Reasons. Particular reliance was placed upon the reasoning in Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at 607. There may be difficulties with such an approach given the reasoning of Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 and the criticism in those reasons of aspects of the reasoning in Omar (and other Full Court decisions of this Court).