FBW18 v Minister for Home Affairs

Case [2019] FCA 1878

FEDERAL COURT OF AUSTRALIA

FBW18 v Minister for Home Affairs [2019] FCA 1878

File number: NSD 1835 of 2018
Judge: YATES J
Date of judgment: 15 November 2019
Catchwords:

MIGRATION – application for extension of time to file an application for judicial review – time extended

MIGRATION – application for judicial review of decision of Minister not to revoke cancellation of the applicant’s visa – whether Minister erred in considering it unnecessary to determine whether non-refoulement obligations were owed in circumstances where the applicant could make a valid application for a protection visa – whether Minister failed to give proper consideration to the strength, nature and duration of the applicant’s ties to Australia – whether Minister failed to give proper consideration to the impediments the applicant would suffer if removed from Australia – no jurisdictional error demonstrated – application dismissed

Legislation:

Federal Court Rules 2011 (Cth), r 2.25

Migration Act 1958 (Cth), ss 36(2), 65, 195A, 197AB, 197C , 198, 476A(1)(c), 477A(1), 477A(2), 499, 501(3A), 501(6), 501BA(2), 501CA(3), 501CA(4), 501G

Cases cited:

Ali v Minister for Immigration and Border Protection [2018] FCA 650

AQM18 v Minister for Immigration and Border Protection [2018] FCA 944

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456

BKS18 v Minister for Home Affairs [2018] FCA 1731

DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576

DOB18 v Minister for Home Affairs [2018] FCA 1523

DOB18 v Minister for Home Affairs [2019] FCAFC 63

FAF18 v Minister for Immigration and Border Protection [2018] FCA 1474

Greene v Assistant Minister for Home Affairs [2018] FCA 919

Omar v Minister for Home Affairs [2019] FCA 279

Minister for Home Affairs v Omar [2019] FCAFC 188

NKWF v Minister for Immigration and Border Protection [2018] FCA 409

Sowa v Minister for Home Affairs [2019] FCAFC 111

Turay v Assistant Minister for Home Affairs [2018] FCA 1487

Date of hearing: 4 March 2019
Date of last submissions: 22 August 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 110
Counsel for the Applicant: Mr J Williams (4 March 2019)
Ms M Yu (7 August 2019)
Solicitor for the Applicant: Nikjoo Lawyers
Counsel for the Respondent: Mr G Johnson
Solicitor for the Respondent: Sparke Helmore

ORDERS

NSD 1835 of 2018
BETWEEN:

FBW18

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:

YATES J

DATE OF ORDER:

15 NOVEMBER 2019

THE COURT ORDERS THAT:

1.Time be extended to the applicant to file the amended Originating application for review of a migration decision dated 4 March 2019 (Application).

2.The Application be dismissed.

3.The applicant pay the respondent’s costs.

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


REASONS FOR JUDGMENT

YATES J:

INTRODUCTION

  1. The applicant seeks an extension of time under s 477A(2) of the Migration Act 1958 (Cth) (the Act) within which to bring a…

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AGLC
FBW18 v Minister for Home Affairs [2019] FCA 1878
Case
[2019] FCA 1878
Decision Date

CaseChat Overview and Summary

The case of FBW18 v Minister for Home Affairs involved the applicant, a Sudanese national, who had resided in Australia on a humanitarian visa since 2009. Following a conviction for aggravated sexual offences, his visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth). The Minister for Home Affairs declined to revoke the cancellation, prompting the applicant to seek an extension of time to file a judicial review application against the Minister's decision. The applicant argued that the Minister erred in not considering whether non-refoulement obligations were owed to him, in not properly evaluating the strength of his ties to Australia, and in not adequately considering the impediments he would face if removed.

The court examined whether the Minister's decision involved a jurisdictional error, particularly in deferring the consideration of non-refoulement obligations until a potential future application for a protection visa. The court referenced previous cases to understand the legal landscape, ultimately aligning with the majority reasoning in DOB18. The court found that the Minister's consideration of the applicant's claims, while brief, did not amount to a jurisdictional error. The Minister acknowledged the applicant's risk of harm if returned to Sudan and recognized the potential engagement of non-refoulement obligations, albeit deferring a detailed consideration to a future application for a protection visa.

The Federal Court granted the applicant an extension of time to file his amended judicial review application but dismissed the application itself. The court held that the Minister did not commit a jurisdictional error by considering the applicant's claims in the context of a potential protection visa application. The court ordered that time be extended for the filing of the amended application, dismissed the judicial review application, and required the applicant to pay the respondent's costs.

Orders

Orders of the court

1. Time be extended to the applicant to file the amended Originating application for review of a migration decision dated 4 March 2019 (Application).

2. The Application be dismissed.

3. The applicant pay the respondent’s costs.

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

Background

Background to the litigation

The third preliminary matter is that, in the course of his opening, the applicant also sought leave to rely on an amended judicial review application. I said that I would grant leave to the applicant to enable that to be done. The amendments are relatively minor. However, as the Minister opposed the inclusion of certain additional relief in the amended application, I informed the parties that I would grant leave on the basis that, if time were to be extended and the amended judicial review application determined in favour of the applicant, I would allow the parties the opportunity to advance further submissions on the question of the relief that should then be granted.BACKGROUND The applicant is aged 23 years and is a national of Sudan. He has resided in Australia under a humanitarian visa since 19 May 2009. On 30 March 2016, he pleaded guilty to and was convicted of four counts of aggravated sexual intercourse with a person aged between 14 and 16 years. He was sentenced in the District Court of New South Wales to an aggregate of four years imprisonment, with a non-parole period of two years. Following his conviction, the applicant’s visa was mandatorily cancelled by a delegate of the Minister under s 501(3A) of the Act because he failed to pass the character test stipulated in s 501(6) and was serving a full-time sentence of imprisonment in a custodial institution because he had committed an offence or offences against Australian law. When a mandatory cancellation decision of this type is made, the Minister is required to provide the person the subject of the cancellation with written notice and particulars of the decision, and invite the person to make representations to the Minister about revocation of the decision: s 501CA(3) of the Act. The Minister may then revoke the decision if satisfied that the person does pass the character test or if there is “another reason” why the cancellation decision should be revoked: s 501CA(4). The applicant made representations to the Minister about revocation of the decision. As part of those representations, he wrote:I know I’d be at risk of being forced into a rebels (sic) faction militia as the country is unstable & a conflict zone. As I left the country when I was nine yrs of age, I have no friend or family & more important in a place such as this, I have no knowledge of any of the customs & social obligations that if are not adhered to could mean beatings or even death. I fear for my safety if returned to Sudan and request asylum.… The Minister personally considered the applicant’s representations. As I explain below, he addressed the applicant’s claimed fear of harm should he be returned to Sudan. In doing so, the Minister reasoned that it was not necessary for him to determine whether non-refoulement obligations were owed to the applicant. The Minister was not satisfied that the applicant passed the character test. He was not satisfied that there was “another reason” why the original decision should be revoked. Having reached those conclusions, the Minister determined that the revocation power was not enlivened and declined to revoke the cancellation decision.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is true that, in his representations to the Minister, the applicant did not explicitly raise the issue of non-refoulement obligations, as the applicant in Omar had done. It is also true, as I have previously said, that the Minister in the present case expressed his reasons in terms closely similar to the terms expressed by the Assistant Minister in Sowa. Indeed, I would accept that, in relevant respects, the reasoning in each case is “materially indistinguishable”, as the Minister has submitted. Nonetheless, in the present case the Minister clearly understood that the applicant was making a claim that Australia owed him non-refoulement obligations. If this were not so, it is difficult to understand why the Minister specifically directed his attention to international non-refoulement obligations in [13] – [17] of his reasons, and why, in [18] of his reasons, he directed his attention to the applicant’s claims of harm “outside of the concept of non-refoulement and the international obligations framework”. Thus, although there are factual differences between the present case and Omar, the fact remains that, in each case, it was accepted that representations were made that Australia owed the applicant in question non-refoulement obligations. However, the same was also true in DOB18 and in Ali and the other cases which followed it. In Sowa, the Assistant Minister appears to have taken on board the possibility that Australia’s non-refoulement obligations might be engaged, in light of the representations that were made. The appeal in Omar was dismissed without deciding whether the primary judge erred in finding that the Assistant Minister fell into jurisdictional error in making his decision under s 501CA(4) by deferring consideration of any non-refoulement obligations to a future protection visa application. The other cases were decided on the basis that it was not necessarily a jurisdictional error for the Minister or Assistant Minister to defer consideration of that question to that other time. At the appellate level, this is most clearly seen in DOB18, although it is also the case in Sowa. As I have said, I propose to follow the majority reasoning in DOB18. Conclusion For these reasons, I am not satisfied that the Minister committed a jurisdictional error in the way in which he dealt with the applicant’s claims to fear harm if returned to Sudan. The Minister recognised that the applicant was advancing, as “another reason” why the original cancellation decision should be revoked, the fact that he was at risk of harm. The Minister did not ignore that claim. He recognised the possibility that the applicant’s claim of harm might engage Australia’s non-refoulement obligations but reasoned that that question could be deferred for consideration in the context of an application for a protection visa. The prospect that the applicant might apply for a protection visa is not in dispute. The Minister considered the factual basis on which it was claimed that Australia’s non-refoulement obligations were engaged and was, in fact, satisfied that, should he be returned to Sudan, the applicant would face hardship arising from war and instability.JURISDICTIONAL ERROR 2The Minister’s reasons

Ratio Decidendi

Legal Principle Established

The applicant seeks an extension of time under s 477A(2) of the Migration Act 1958 (Cth) (the Act) within which to bring a proceeding to review a decision (the migration decision) made personally by the respondent, the Minister for Home Affairs (the Minister), under s 501CA(4) of the Act not to revoke a decision under s 501(3A) of the Act (the original decision) to cancel the applicant’s Class XB Subclass 202 Global Special Humanitarian visa. The applicant was given written notice of the migration decision by letter dated 15 August 2018. Section 477A(1) of the Act provides that an application to the Court for a remedy to be granted in exercise of the Court’s original jurisdiction under s 476A(1)(c) of the Act must be made to the Court within 35 days of the date of the decision. The applicant’s solicitor attempted to file an application for review of the decision (the judicial review application or, simply, the application) on the last day of the prescribed period (being 19 September 2018). However, he lodged the application in the Court’s Registry outside the time prescribed by r 2.25 of the Federal Court Rules 2011 (Cth) for filing documents (i.e. after 4.30 pm) with the consequence that, if accepted for filing, the application would be taken to have been filed on the next business day—that is, outside the time prescribed by s 477A(1) of the Act. The Registry rejected the lodgement for this reason. The applicant’s solicitor was informed of this fact on 24 September 2018. On 25 September 2018, he made a written application to the Court to extend time. The Minister accepts that the delay is “not especially long” and that he would not suffer prejudice if time were to be extended. He submits, however, that there has been no satisfactory explanation for the delay and that, more importantly, the applicant has not demonstrated sufficient merit in his draft judicial review application to warrant time being extended. In light of this opposition, I have heard full argument on the merits of the proposed judicial review application. This has enabled me to determine the application to extend time, and the judicial review application itself on the basis of the arguments advanced in support of the application to extend time, without the need for, potentially, two hearings. There are three preliminary matters which I should record. The first is that when this matter was called on for hearing, the applicant sought an adjournment on the basis that there were pending appeals to the Full Court in relation to cases involving the exercise of power under s 501CA(4) of the Act or a cognate power, where the Minister had reasoned that, for the purpose of making his decision, it was not necessary for him to consider whether non-refoulement obligations were owed to the applicant in question because the existence or otherwise of those obligations would be fully considered should the applicant in question apply for a protection visa. The application for an adjournment was opposed by the Minister. I was not persuaded that an adjournment was warranted. However, when refusing the adjournment application, I said that I would consider whether the Court’s judgment should await the determination of those appeals.