ENT19 v Minister for Home Affairs

The appeal before the court was brought by the appellant, a refugee recognised by the Immigration Assessment Authority, against the decision of the Federal Circuit Court to dismiss his application for judicial review of a decision by the Minister for Home Affairs to refuse to grant him a Safe Haven Enterprise visa. The appellant, who had been convicted of, and sentenced for, a people smuggling offence, was found to be at risk of serious harm in his country of nationality. The appellant satisfied all other visa criteria and there was no evidence that he was entitled to enter and reside in a country other than his country of nationality. The central issue before the court was whether the Minister failed to consider the legal and practical consequences of refusing to grant the appellant a visa, specifically the prospect of refoulement and the potential breach by Australia of its non-refoulement treaty obligations.

The court found that the Minister indeed failed to consider the legal consequences of his decision, which included the risk of indefinite detention and removal from Australia. In evaluating the national interest, the Minister was required to assess whether the decision would place Australia in breach of its international treaty obligations. The court concluded that the Minister’s decision was legally unreasonable because it amounted to double punishment, for that reason it was not authorised by the Act pursuant to which it was purportedly made and was therefore vitiated by jurisdictional error. The court held that the appeal should be allowed and the orders of the Federal Circuit Court should be set aside. A writ of certiorari should issue to quash the Minister’s decision and a writ of mandamus should issue to direct the Minister to determine the appellant’s visa application according to law. The Minister should also pay the appellant’s costs both in this Court and the court below.