EXT20 v Minister for Home Affairs

Link copied
Case Copied 57 min read

FEDERAL COURT OF AUSTRALIA

EXT20 v Minister for Home Affairs [2021] FCA 629

File number: VID 766 of 2020
Judgment of: O'BRYAN J
Date of judgment: 11 June 2021
Catchwords: MIGRATION – application for judicial review of decision of the Minister refusing to revoke mandatory cancellation of visa under section 501CA(4) of the Migration Act 1958 (Cth) – where applicant did not pass character test due to having a “substantial criminal record” under section 501(6)(a) Migration Act 1958 (Cth) – whether there was another reason why mandatory cancellation should be revoked – where the applicant made representations as to the risk of harm if returned to his country of nationality – where the Minister concluded that he was unable to make a finding about the applicant’s claim to fear harm due to a lack of detail and supporting evidence – whether the Minister erred in failing to consider the applicant’s claims – whether the Minister erred in failing to notify the applicant that a reason for rejecting the claims may be the lack of elaboration and substantiation of the claims – application dismissed
Legislation:

Migration Act 1958 (Cth) ss 476A, 500, 501, 501CA, 501G

Migration Regulations 1994 (Cth) reg 2.52
Cases cited:

Ashraf v Minister for Immigration (2018) 261 FCR 97

Bale v Minister for Immigration [2020] FCA 646

BCR16 v Minister for Immigration (2017) 248 FCR 456

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

DQM18 v Minister for Home Affairs (2020) 278 FCR 529

EVK18 v Minister for Home Affairs (2020) 274 FCR 598

Goundar v Minister for Immigration [2016] FCA 1203; 160 ALD 123

Guclukol v Minister for Home Affairs [2020] FCAFC 148

Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628

Minister for Home Affairs v Omar (2019) 272 FCR 589

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326

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

Minister for Immigration v Maioha (2018) 267 FCR 643

Minister for Immigration v SZGUR (2011) 241 CLR 594

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166

Navoto v Minister for Home Affairs [2019] FCAFC 135

Perera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 403

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Twist v Randwick Municipal Council (1976) 136 CLR 106

Walker v Minister for Home Affairs [2020] FCA 909
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 73
Date of hearing: 12 March 2021
Counsel for the Applicant:  A Aleksov
Solicitor for the Applicant: Carina Ford Immigration Lawyers
Counsel for the Respondent: G Hill
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 766 of 2020
BETWEEN:

EXT20

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:

O’BRYAN J

DATE OF ORDER:

11 JUNE 2021

THE COURT ORDERS THAT:

1.The…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read EXT20 v Minister for Home Affairs and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2021] FCA 629
Decision Date

CaseChat Overview and Summary

In the case of EXT20 v Minister for Home Affairs, the Federal Court of Australia was tasked with reviewing the decision of the Minister for Home Affairs to refuse to revoke the mandatory cancellation of a visa under section 501CA(4) of the Migration Act 1958 (Cth). The applicant, who did not meet the character test due to a substantial criminal record, sought to have the visa cancellation revoked on the basis that he faced significant harm if returned to his country of nationality. The court needed to determine whether the Minister had erred in his handling of the applicant’s claims regarding the risk of harm and whether the Minister was required to notify the applicant that a reason for rejecting his claims might be the lack of detail and substantiation.

The court considered the statutory provisions relevant to the Minister’s power to revoke a visa cancellation and found that while the Minister had the discretion to consider whether to revoke the cancellation, he was not obligated to do so if he was not satisfied that the person passed the character test or that there was another reason for revocation. The court examined the Minister’s assessment of the applicant’s claims and found that the Minister had not erred in concluding that he could not make a finding about the applicant’s claim to fear harm due to insufficient detail and supporting evidence. Furthermore, the court held that there was no requirement for the Minister to notify the applicant that the reason for rejecting his claims might be the lack of elaboration and substantiation.

Accordingly, the court dismissed the applicant's application for judicial review. The applicant was ordered to pay the respondent's costs of the application. This decision underscores the importance of providing detailed and substantiated claims when seeking to overturn a visa cancellation based on character grounds, particularly in cases involving the risk of harm if returned to one's country of nationality.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application.

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

Section 501CA of the Act relevantly provides that:(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. By s 501CA(7), a decision not to revoke the cancellation of a visa, made under subs (4), is not reviewable in the Administrative Appeals Tribunal (Tribunal) under Part 5 or Part 7 of the Act. While such a decision made by a delegate of the Minister is reviewable in the Tribunal under s 500(1)(ba) of the Act, a decision made personally by the Minister (as in this case) is not reviewable. Regulation 2.52 of the Migration Regulations 1994 governs the period and manner in which a representation under s 501CA(3)(b) is to be made. The regulation stipulates that a representation must be made within 28 days after the relevant person has been given notice of the cancellation of the person’s visa. The regulation also stipulates that documents accompanying the representation must be an original document or a certified true copy. The applicant’s representations to the Minister As noted above, on 18 January 2019, a delegate of the Minister cancelled the applicant’s visa as required by s 501(3A) of the Act by reason of the applicant being sentenced to a term of imprisonment of five and a half years. The applicant was notified of this decision and was invited to make representations about the revocation of the decision to cancel his visa. The applicant made representations in response to that invitation. The representations that are relevant to the grounds of review are set out below. On 31 January 2019, the applicant submitted a form titled “Request for revocation of a mandatory visa cancellation under s 501(3A)”. In a section of the form titled “Reasons for revocation”, the applicant stated, amongst other things, that (errors in original):I flee my country since when I was 15 years old, and been a refugee du to my race discrimination, I cannot go back to D. R. Congo because I could suffer significant harm or persecution ongoing civil war.…Nb Please see attachment.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.