EKS20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FCA 1363
•15 November 2022
FEDERAL COURT OF AUSTRALIA
EKS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1363
File number(s): VID 679 of 2020 Judgment of: O'CALLAGHAN J Date of judgment: 15 November 2022 Catchwords: MIGRATION – application for extension of time in which to seek judicial review – application dismissed Legislation: Migration Act 1958 (Cth) ss 477A, 477A(1), 501CA, 501CA(4) Cases cited: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 25 Date of hearing: 28 October 2022 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the Respondent: Mr K Sypott of the Australian Government Solicitor ORDERS
VID 679 of 2020 BETWEEN: EKS20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
O'CALLAGHAN J
DATE OF ORDER:
15 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The name of the respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application for extension of time be dismissed, with costs, to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J:
Introduction
The applicant seeks an extension of time in which to apply for judicial review of a decision of the Assistant Minister for Immigration and Border Protection (the Assistant Minister) not to revoke the mandatory cancellation of the applicant’s Refugee (Class XB) (Subclass 200) visa (the visa).
The applicant is an Afghan national who arrived in Australia on 22 October 2013 as the holder of the visa. On 22 April 2015, he was convicted of make threat to kill, contravene family violence intervention order (two counts), assault with weapon, contravene family violence final intervention order (two counts) and unlawful assault (two counts). An aggregate sentence of 12 months’ imprisonment on all charges was imposed.
On 25 June 2015, the visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act).
On 29 July 2015, the applicant requested revocation of the mandatory cancellation decision. In that request, and in subsequent correspondence with the Department of Immigration and Border Protection, he made representations that he had arrived in Australia as a refugee and that he feared being killed in Afghanistan as a Hazara Shi’a.
On 18 January 2017, the Assistant Minister decided not to revoke the mandatory cancellation decision under s 501CA(4) of the Act.
The Assistant Minister’s decision was sent via registered post to the applicant’s authorised recipient (a solicitor at Refugee & Immigration Legal Centre Inc).
On 16 October 2020, the applicant filed an application for an extension of time in which to seek judicial review in this Court. He was subsequently represented in this proceeding by Victoria Legal Aid, who filed two affidavits and written submissions on his behalf.
On 31 January 2022, I made orders, by consent, the effect of which was that the hearing of the application was held in abeyance pending the determination of, and publication of reasons for judgment in, Plaintiff M1/2021 v Minister for Home Affairs.
The High Court published reasons for judgment in that matter on 11 May 2022. See [2022] HCA 17; (2022) 96 ALJR 497.
On 8 July 2022, Victoria Legal Aid ceased acting for the applicant.
The Assistant Minister’s decision
Section 501CA(4) of the Act provides that the Minister may revoke a decision made under s 501(3A) to cancel a visa that has been granted to a person if:
(a)the person makes representations in accordance with the Minister’s invitation to make representations about revocation of the original decision; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by s 501); or
(ii)that there is another reason why the original decision should be revoked.
The Assistant Minister was satisfied that the applicant had made representations seeking revocation of the mandatory cancellation decision, in accordance with the period prescribed in the Migration Regulations 1994 (Cth). He was further satisfied that the applicant did not pass the character test, as he had a “substantial criminal record” arising from his sentence of 12 months’ imprisonment.
The applicant has four children living in Australia. The Assistant Minister noted that the children, and their mother, were protected by a family violence intervention order issued against the applicant. Further, the Assistant Minister noted that the applicant had not had any contact with his family since he was taken into custody in January 2015. Notwithstanding these matters, the Assistant Minister found that a decision to revoke the mandatory cancellation decision would be in the best interests of the applicant’s children.
The Assistant Minister considered that the applicant’s serious offences breached the Australian community’s trust and that the Australian community expected that he should not hold a visa.
The Assistant Minister noted that the applicant had arrived on a Class XB Subclass 200 (Refugee) visa and that accordingly, his circumstances may give rise to international non‑refoulement obligations. He further noted that the applicant had made representations that may give rise to such obligations. However, the Assistant Minister considered that it was unnecessary for him to determine whether non‑refoulement obligations were owed to the applicant, as s 501E of the Act did not prevent the applicant from making a valid application for a protection visa.
The Assistant Minister took into account the applicant’s relatively short period of residence in Australia, and gave less weight to this consideration because the applicant commenced offending after living in, and contributing to, the Australian community for only a short period. Although separated from his wife and estranged from his adult child, the Assistant Minister took into account that the applicant had a friend in Australia who might experience emotional hardship should the visa cancellation not be revoked. The Assistant Minister found that a non‑revocation decision would have a limited impact on the applicant’s wife and adult child, but that it may cause them some emotional distress upon learning of such a decision.
In considering the impediments that the applicant may face in Afghanistan, the Assistant Minister again noted that the applicant had made claims that may give rise to international non‑refoulement obligations. He found that the applicant’s health problems and the absence of family support in Afghanistan would cause him to face significant impediments, and that separation from his family in Australia will cause him emotional hardship.
The Assistant Minister considered that the applicant’s criminal offending was serious, particularly in light of its violent nature, the sentence that was imposed and the fact that the court viewed the offending as serious. He found that the applicant had contravened family violence intervention orders on five occasions, and had demonstrated a disregard for judicial orders and the law. Although the applicant expressed his remorse for his offending and that he now has a better understanding of the law and culture in Australia, the Assistant Minister noted that this claimed rehabilitation had not been tested in the community. The Assistant Minister found that there was a likelihood, albeit a low likelihood, that the applicant would reoffend. If he did engage in criminal conduct of a similar nature, namely domestic violence and breaches of domestic violence orders, such offending could cause psychological and physical harm to a member of the Australian community.
Having regard to the above matters, the Assistant Minister concluded that he was not satisfied that there was “another reason” for the mandatory cancellation decision to be revoked.
Consideration
Under s 477A(1) of the Act, an application to review the Assistant Minister’s decision was required to be brought within 35 days of the date of the decision (that is, by 22 February 2017). The application to extend time was not made until 16 October 2020.
Factors commonly regarded as relevant to the exercise of the court’s discretion include the length of the delay, the explanation for that delay, any prejudice to the administration of justice or the Minister, and the merits of the underlying application. See Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 at 824 [12]‑[13] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
As I explained at the hearing, it is unnecessary to consider any factor here, other than the merits of the underlying application, because the decision of the High Court in Plaintiff M1 means that the proposed ground of review is bound to fail.
The applicant’s single ground of review, set out in the draft amended originating application annexed to the affidavit of Walid Babakarkhil affirmed on 18 October 2021, is as follows:
The Assistant Minister failed to consider the Applicant’s representations as to why the cancellation decision should be revoked, being that his removal from Australia to Afghanistan would expose him to harm and would result in Australia breaching its international non‑refoulement obligations.
Particulars
The Applicant’s representations included a claim that returning him to Afghanistan would breach Australia’s non‑refoulement obligations (AB54‑60).
The Assistant Minister acknowledged that the Applicant claimed that returning him to Afghanistan would breach Australia’s non‑refoulment [sic] obligations (AB21).
The Assistant Minister determined that it was unnecessary to consider whether Australia’s non‑refoulment [sic] obligations are owed to the Applicant (AB22).
As the Minister correctly submitted:
The majority judgment in Plaintiff M1 provides a complete answer to this ground of review. Relevantly, the majority held that, in deciding whether there is “another reason” to revoke the mandatory cancellation of a person’s visa under s 501CA(4)(b)(ii) of the Act, where that person remains free to apply for a protection visa:
•the Minister is required to read, identify, understand and evaluate any representations made in response to an invitation issued under s 501CA(3)(b) which raise a potential breach of Australia’s international non‑refoulement obligations [citing Plaintiff M1 at [9], [24]];
•Australia’s international non‑refoulement obligations unenacted in Australia were not a mandatory relevant consideration [citing Plaintiff M1 at [9], [20], [29]]; and
•to the extent that Australia’s international non‑refoulement obligations are given effect in the Act, it is open to the Minister to defer assessment of whether a person is owed those obligations on the basis it is open to that person to apply for a protection visa [citing Plaintiff M1 at [9], [30]].
The applicant made representations to the Assistant Minister that he had arrived in Australia as a refugee and that he feared being killed in Afghanistan as a Hazara Shi’a. The Assistant Minister’s reasons for decision records that he read, identified, understood and evaluated these representations. However, he decided that it was unnecessary to assess those representations in circumstances where it was open to the applicant to apply for a protection visa. In light of Plaintiff M1, no arguable jurisdictional error is disclosed by the Assistant Minister’s reasoning.
I am bound to accept that submission. It follows that the application for an extension of time must be dismissed, with costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan. Associate:
Dated: 15 November 2022
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