FRH18 v Minister for Home Affairs

Case [2018] FCA 1769

FEDERAL COURT OF AUSTRALIA

FRH18 v Minister for Home Affairs [2018] FCA 1769

File number: NSD 1990 of 2018
Judge: RARES J
Date of judgment: 16 November 2018
Catchwords:

MIGRATION – review of Minister’s decision – where Minister cancelled visa under s 501A(2) of the Migration Act 1958 (Cth) – where Australia had non-refoulement obligations in respect of applicant – where applicant failed the character test – whether Minister gave proper, genuine and realistic consideration to whether it was in national interest to cancel visa because of possibility that applicant might reoffend despite the provisions of s 197C – whether Minister could consider non-refoulement obligations after cancelling visa as an “alternative management option” – whether Minister understood legal consequences of his decision

STATUTORY INTERPRETATION – Minister’s power to cancel visa if satisfied cancellation in national interest – Migration Act 1958 (Cth) s 501A(2) – non-compellable powers of the Minister to grant visa under ss 48B and 195A or make residence determination under s 197AB if satisfied in public interest – factors to which decision-maker must have regard in deciding to cancel visa where effect is that person in respect of whom Australia has non-refoulement obligations will be subject to removal as soon as reasonably practicable under s 198 without regard to those obligations by force of s 197C – where s 197C requires disregard of any non-refoulement obligations – whether Minister could defer consideration of non-refoulement until after revoking visa

Legislation:

Criminal Code Act 1995 (Cth) Ch 2

Migration Act 1958 (Cth) ss 48B, 195A, 197AB, 197C, 198, 417, 501, 501A, 501F, 501G

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

Migration Legislation Amendment (Immigration Detainees) Act 2001 (Cth)
Cases cited:

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

DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576

DOB18 v Minister for Home Affairs [2018] FCA 1523

Graham v Minister for Immigration and Border Protection (2017) 347 ALR 350

Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Border Protection v Le (2016) 244 FCR 56

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164

Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400

Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566

NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1

Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319

Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28

Re Patterson; Ex parte Taylor (2001) 207 CLR 391

SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563
Date of hearing: 30 October 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional…

Continue reading FRH18 v Minister for Home Affairs

Sign in free to access the full text

Details
AGLC
FRH18 v Minister for Home Affairs [2018] FCA 1769
Case
[2018] FCA 1769
Decision Date

CaseChat Overview and Summary

In the case of FRH18 v Minister for Home Affairs, the applicant, an individual whose visa was cancelled by the Minister for Home Affairs, sought judicial review of the decision. The central dispute was whether the Minister correctly exercised his discretion to cancel the applicant's visa under section 501A(2) of the Migration Act 1958 (Cth), given the applicant's failure to meet the character test and the implications of Australia's non-refoulement obligations. The Federal Court was tasked with determining if the Minister appropriately assessed whether cancelling the visa was in the national interest, considering the applicant's potential to reoffend, and whether he properly understood and applied the legal obligations and powers available to him.

The court addressed several key legal issues, including whether the Minister appropriately considered the national interest when deciding to cancel the visa, whether non-refoulement obligations could be factored in as an "alternative management option" post-cancellation, and if the Minister correctly understood the legal consequences of his decision. Central to these considerations was the interpretation of sections 501A(2), 197C, and 198 of the Migration Act, as well as the interplay between the national interest and Australia's non-refoulement obligations.

The Federal Court found that the Minister did not give proper consideration to the national interest as required by the statute. The Minister's decision process was flawed as he failed to adequately weigh the risk of reoffending against the national interest, particularly since the applicant had significant criminal history and personal issues that contributed to his offending. The Minister's consideration of non-refoulement obligations as an "alternative management option" after cancelling the visa was also deemed improper. The court concluded that these obligations must be considered before the visa is cancelled. Furthermore, the Minister did not sufficiently understand the legal implications of his decision, particularly regarding the non-refoulement obligations and the timing of their consideration.

The decision was quashed, and the Minister was ordered to pay the applicant's costs. This ruling underscores the importance of meticulous adherence to statutory requirements and the proper understanding of legal obligations when exercising discretionary powers in immigration matters.

Orders

Orders of the court

1. The decision of the respondent made on 30 April 2018 to cancel the applicant’s Partner (Residence) (Class BS) Subclass 801 visa be quashed.

2. The respondent pay the applicant’s costs.

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

Relevantly, s 198(2A) provides that an officer must remove, as soon as reasonably practicable, an unlawful non-citizen if the Minister personally has made a decision to cancel a non-citizen’s visa under, among other provisions, s 501A, and he or she has not made a valid application for a substantive visa that can be granted when he or she is in the migration zone.The Minister’s decision and reasons On 30 April 2018, the Minister circled the cancellation outcome on the decision page attached to the Departmental submission before him. That outcome stated that the Minister reasonably suspected that the applicant did not pass the character test, the applicant had not satisfied him that he did pass it and that “I am satisfied that it is in the national interest to cancel [the applicant’s] visa” under s 501A(2) for the reasons set out in the attached statement of reasons. The Minister also circled “please discuss” in item 6 of the cover page of the Departmental submission which relevantly read:As protection obligations are owed to [the applicant], if you decide to cancel his visa, you may consider alternative management options in [the applicant’s] case (which encompass the possibility of granting a visa under s 195A). (emphasis added) Early in his reasons, the Minister discussed the question of whether cancellation of the applicant’s visa was in the national interest. He said that s 501A(2) made clear that this issue was separate and distinct from whether or not the person passed the character test. The Minister said that s 501A did not define the national interest and that the Courts had been reluctant to do so in statutory contexts “but the national interest has been determined to be a different concept to the public interest” ([14]). He referred to what the Full Court had said in Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at 352 [86], namely that the Minister had to determine what was or was not in the national interest according to his or her own satisfaction, that had to be attained reasonably, and:The Minister in considering the national interest under s 501A(2) may properly have regard to the circumstances which underpin the failure to satisfy him that an applicant for a visa passes the character test. There may be circumstances in which the seriousness of a person’s criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest. The Minister also referred to Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 409 and to what Gaudron J had said, after referring to that decision, in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 419 [79]. He concluded, by reference to those cases, that matters of national interest included, among other matters, the seriousness of the criminal conduct, having regard to its circumstances, its nature and any judicial “disposition in respect of it”. He continued ([18]):I also find that matters of national interest include a consideration of the risk of a person reoffending, and the harm which could flow if such a risk eventuated. (emphasis added)

Ratio Decidendi

Legal Principle Established

The Minister also referred to Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 409 and to what Gaudron J had said, after referring to that decision, in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 419 [79]. He concluded, by reference to those cases, that matters of national interest included, among other matters, the seriousness of the criminal conduct, having regard to its circumstances, its nature and any judicial “disposition in respect of it”. He continued ([18]):I also find that matters of national interest include a consideration of the risk of a person reoffending, and the harm which could flow if such a risk eventuated. (emphasis added) The Minister then considered the applicant’s considerable criminal history, in particular from 2008 to 2014, noting that it included violent offences, which he said were viewed “very seriously”, and a sentence of imprisonment. The Minister set out the various circumstances in which the applicant had been convicted and sentenced, including on 11 March 2014 to 12 months imprisonment for driving furiously in a motor vehicle causing bodily harm ([25], [53]). He also noted the applicant’s earlier offences that involved convictions for assault and stalking or intimidating the mother of his partner, with whom, the Minister accepted, the applicant and his partner (while she was alive) had a difficult relationship. In convicting the applicant on those and other charges on 29 January 2013, the magistrate sentenced him to a fine, placed him on a 12 month good behaviour bond and made an apprehended domestic violence order naming the mother and her husband as protected persons ([22]). The Minister concluded that the applicant’s criminal conduct in Australia was serious ([36]). The Minister then turned to consider the risk to the Australian community if the applicant reoffended, noting that this consideration “may assist in founding a satisfaction that it is in the national interest to cancel his visa” ([37]). The Minister discussed the psychiatric report that the magistrate considered when sentencing the applicant on 11 March 2014 and the applicant’s personal circumstances, including his having been sexually abused as a child, having his life threatened by a mob after publishing a religious manuscript in Pakistan when he was about 18, the psychiatrist’s opinion that he had developed post traumatic distress disorder, his drug and alcohol abuse and the terminal illness that led (with similar drug and alcohol abuse by his late wife) to the removal of his children by child protection services and, later, the death of his wife ([39]). Ultimately, the Minister found that the applicant’s “substance abuse and mental health issues have been significant contributing factors in his history of offending, and his grief over the death of his wife is likely to have contributed to the offences he was convicted of on 29 January 2013 and 11 March 2014” (being his last convictions) ([46]).