EXT20 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

EXT20 v Minister for Home Affairs [2022] FCAFC 72

Appeal from: EXT20 v Minister for Home Affairs [2021] FCA 629
File number(s): VID 370 of 2021
Judgment of: MORTIMER, WIGNEY AND SNADEN JJ
Date of judgment: 5 May 2022
Catchwords: MIGRATION – appeal – refusal to revoke mandatory cancellation of appellant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) – where appellant made representations about risk of harm if returned to country of nationality – representations made within the prescribed period but after receipt of a notice under s 501CA(3) that misrepresented the prescribed period – where Minister concluded that he was unable to make a finding about the appellant’s claim to fear harm due to a lack of detail and supporting evidence – whether primary judge erred in not finding that failure to consider the appellant’s claims was a breach of procedural fairness – whether primary judge erred in not finding that failure to notify appellant of the lack of detail and supporting evidence was a breach of procedural fairness – whether erroneous invitation for representations meant that Minister lacked power to refuse to revoke the mandatory cancellation decision – appeal dismissed
Legislation:

Migration Act 1958 (Cth), ss 501, 501CA(3), 501CA(4)

Migration Regulations 1994 (Cth), reg 2.52(2)(b)
Cases cited:

Abebe v The Commonwealth [1999] HCA 14; 197 CLR 510

Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593

BCE20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 124

BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91; 285 FCR 43

CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155; 272 FCR 131

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352

CHVS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 34

Commissioner of ACT Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576

Downes v Minister for Home Affairs [2020] FCA 54; 168 ALD 498

EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173; 395 ALR 36

EVK18 v Minister for Home Affairs [2020] FCAFC 49; 274 FCR 598

Guclukol v Minister for Home Affairs [2020] FCAFC 148; 279 FCR 611

Kioa v West [1985] HCA 81; 159 CLR 550

Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589

Minister for Home Affairs v Smith [2019] FCAFC 137

Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 338 ALR 351

Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241…

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Details
Case
[2022] FCAFC 72
Decision Date

CaseChat Overview and Summary

The case of EXT20 v Minister for Home Affairs involved the appellant, a Congolese national who had his visa cancelled under the Migration Act 1958 (Cth), appealing the Minister for Home Affairs' decision not to revoke that cancellation. The appellant argued that his visa cancellation should be revoked on the basis of the risk of harm if returned to the Democratic Republic of Congo, citing his ethnicity and the ongoing civil war. The appellant made these representations within the prescribed period, despite receiving a notice that incorrectly stated the period for making such representations. The Minister concluded that the appellant’s claims were not sufficiently detailed or supported by evidence to warrant a finding about the risk of harm.

The legal issues before the court were whether the primary judge erred in not finding that the failure to consider the appellant’s claims was a breach of procedural fairness, whether the failure to notify the appellant of the lack of detail and supporting evidence was a breach of procedural fairness, and whether the erroneous invitation for representations meant the Minister lacked the power to refuse to revoke the mandatory cancellation decision. The court found that the Minister did not breach procedural fairness by not considering the appellant's claims, as the nature of the process did not require a "running commentary" of the decision-making process. However, the court held that the Minister should have notified the appellant that his representations lacked detail and supporting information, which could result in his revocation request being refused. This failure constituted a breach of procedural fairness.

The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs of the appeal. The court's decision underscored the importance of procedural fairness in administrative law, particularly in the context of visa revocation decisions under the Migration Act. The court did not find the erroneous notice to be a basis for invalidating the Minister's decision, as it did not affect the Minister's ability to make a decision based on the appellant's representations. The judgment highlighted the need for clear and accurate communication in administrative processes to ensure fairness and compliance with legal requirements.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow, in my opinion the appeal should be allowed, on the basis of one of the three grounds of appeal before the Court.BACKGROUND The appellant was born in the Democratic Republic of Congo (DRC) in 1987. He was 23 years old when he arrived in Australia. Almost two years later, on 3 August 2012, he was granted a Class BC subclass 100 Partner visa. On 18 January 2019, the appellant’s visa was cancelled under s 501(3A) of the Migration Act, on the basis that the appellant had a “substantial criminal record” within the meaning of s 501(6)(a) and (7)(a)-(c) of the Migration Act. In 2018, the appellant had been convicted on two counts of rape, and was sentenced to five and a half years’ imprisonment. On 31 January 2019, the appellant requested revocation of the cancellation decision. In that request, the appellant stated that he feared significant harm or persecution if he returned to the DRC, because of his ethnicity, and because of the ongoing civil war in that country. He explained that his mother was a member of the Banyamulenge tribe, an ethnic minority in the DRC, and that his father was from a different caste and so he was considered “half-caste”. He claimed his parents were killed by rebels on suspicion of colluding with his mother’s brothers. He stated that his mother was raped, beaten and tortured by a group of military on the night of her killing, and that his father was beaten and tortured to death. He also stated that descendants of people from the Banyamulenge tribe are discriminated against in the DRC and not accepted as Congolese; rather, they are seen as being Tutsis from Rwanda but are not recognised as Rwandan by that country either. The appellant claimed his younger brother and first-born son were assaulted in the DRC and their carer killed when their ethnicity was revealed. The appellant stated that he fled the DRC because of the discrimination and torture he faced there, and emphasised that the DRC remains an unsafe place due to the ongoing civil war. On 27 October 2020, the Minister for Home Affairs decided not to revoke the cancellation decision. Relevantly to the grounds of appeal, in the reasons for his decision, the Minister summarised the appellant’s claims about his ethnicity, the discrimination faced by Banyamulenge in the DRC, the killings and assaults he described, and the safety of the DRC in light of the ongoing conflict in that country. Although the Minister was not bound by the then applicable Ministerial direction providing guidance and a decision-making structure for the exercise of the revocation power, the Minister’s reasons followed the guidance and structure contained in the applicable Direction. Direction 65 applied at the time the appellant’s visa was cancelled and at the time he applied for revocation; therefore, the initial notices and information provided to the appellant refer to Direction 65. On 28 February 2019, Direction 65 was revoked and replaced by Direction 79. The Department informed the appellant of this change in April 2020 and advised him that from that time onwards he should refer to Direction 79.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Minister did not cavil with the premise of this ground; namely that he was obliged to afford procedural fairness to the appellant in the exercise of the power under s 501CA(4) and that the content of that obligation could be described by reference to ordinary principles. Indeed, correctly, the Minister’s written submission was:In general terms, procedural fairness required the Minister:to inform the Appellant of the case against him and give him a reasonable opportunity to address it; andto inform the Appellant of, and provide him with an opportunity to address, the critical issues or factors on which the decision was likely to turn, as well as any adverse information that was credible, relevant and significant to the decision.A decision-maker is required to advise an affected person of any adverse conclusion which has been arrived at which would not obviously be open on the known material, but there is no obligation for the decision-maker to expose mental processes or provisional views.(Emphasis added, citations omitted.) As authority for these propositions, the Minister referred to Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174; 265 FCR 177 at [38], quoting Snedden v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156; 230 FCR 82 at [175] and [176], Renton v Minister for Home Affairs [2021] FCA 931 at [35]-[36] and Commissioner of ACT Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 at 592. The Minister submitted the appellant’s argument fell within the proposition in bold in the extract above, namely: that procedural fairness does not require decision-makers to give a “running commentary” of their reasons or reasoning: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [48]; Minister for Home Affairs v Smith [2019] FCAFC 137 at [17]. That qualification has been applied to circumstances where no hearing is given as part of the decision-making process: see Snedden at [234]; Smith at [17]. The Minister contended that a finding that a representation did not have sufficient detail was an “entirely obvious” treatment of the material and outside Alphaone principles. He also submitted that the appellant was wrong to invite the Court to embark on some “freestanding” evaluation of whether there was a “practical injustice” (being the well-cited phrase from Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]). The Minister’s submissions should be rejected in their application to this particular decision-making process, although the principles to which the Minister referred are well established and must be accepted. In determining the content of procedural fairness, both the statutory context and the factual context are important. Beginning with the statutory context, as the appellant submitted, the operation of s 501CA(3) and (4) imposes a “reverse onus” on a person affected by a mandatory cancellation. The visa had been cancelled by operation of law, and it is up to the person affected to persuade the Minister, by the methods of persuasion for which Div 2 of Pt 9 allows, that the cancellation should be revoked. The only permitted method is the making of representations within a relatively confined period of time, namely 28 days from when the affected person has received, or is deemed to have received, notice of the cancellation and the invitation to make representations. Almost inevitably, the person affected will be in prison, and access to materials will be difficult and restricted, as the Full Court observed in Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; 281 FCR 578 at [34]-[36]. No hearing is contemplated by the scheme. The revocation power can be exercised by either the Minister personally, or a delegate, and the person affected does not know, and is not informed, which decision-making pathway is chosen. The Regulations impose some detailed prescriptions about what information must accompany a request: see generally reg 2.52(3)-(6).

Ratio Decidendi

Legal Principle Established

This appeal concerns a decision of the Minister of Home Affairs not to revoke the mandatory cancellation of the appellant’s visa. The appellant made representations about, amongst other matters, the harm he feared if he were to return to his country of nationality. These representations were made within the time prescribed by the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth), despite the appellant receiving a notice from the Minister’s department that miscalculated how much time the appellant had. The primary judge dismissed the appellant’s judicial review application in respect of the non-revocation decision. On appeal, the appellant submitted the primary judge should have found the Minister did not afford him procedural fairness, by not considering the appellant’s claim to be a refugee, alternatively by not notifying the appellant that his representations on this issue lacked detail and supporting information, could result in his revocation request being refused. The appellant also submitted that the defective cancellation and revocation notice meant the Minister did not have the power to refuse to revoke the mandatory cancellation decision, and the Court should order the Minister to issue a new invitation for representations. For the reasons that follow, in my opinion the appeal should be allowed, on the basis of one of the three grounds of appeal before the Court.BACKGROUND The appellant was born in the Democratic Republic of Congo (DRC) in 1987. He was 23 years old when he arrived in Australia. Almost two years later, on 3 August 2012, he was granted a Class BC subclass 100 Partner visa. On 18 January 2019, the appellant’s visa was cancelled under s 501(3A) of the Migration Act, on the basis that the appellant had a “substantial criminal record” within the meaning of s 501(6)(a) and (7)(a)-(c) of the Migration Act. In 2018, the appellant had been convicted on two counts of rape, and was sentenced to five and a half years’ imprisonment. On 31 January 2019, the appellant requested revocation of the cancellation decision. In that request, the appellant stated that he feared significant harm or persecution if he returned to the DRC, because of his ethnicity, and because of the ongoing civil war in that country. He explained that his mother was a member of the Banyamulenge tribe, an ethnic minority in the DRC, and that his father was from a different caste and so he was considered “half-caste”. He claimed his parents were killed by rebels on suspicion of colluding with his mother’s brothers. He stated that his mother was raped, beaten and tortured by a group of military on the night of her killing, and that his father was beaten and tortured to death. He also stated that descendants of people from the Banyamulenge tribe are discriminated against in the DRC and not accepted as Congolese; rather, they are seen as being Tutsis from Rwanda but are not recognised as Rwandan by that country either. The appellant claimed his younger brother and first-born son were assaulted in the DRC and their carer killed when their ethnicity was revealed. The appellant stated that he fled the DRC because of the discrimination and torture he faced there, and emphasised that the DRC remains an unsafe place due to the ongoing civil war.