FEDERAL COURT OF AUSTRALIA
FUD18 v Minister for Home Affairs [2020] FCA 48
File number(s): NSD 1705 of 2018 Judge(s): THAWLEY J Date of judgment: 03 February 2020 Catchwords: MIGRATION – application for –declarations and writs of prohibition and mandamus – whether Minister could not lawfully infer from an Interpol red notice that the applicant would present a risk to the Australian community or a segment of it – whether Minister can have regard to information outside of the Interpol red notice under s 501(6)(h) – application dismissed Legislation: Migration Act 1958 (Cth) ss 65(1)(a), 65(1)(b) 501(1), 501(6)(d), 501(6)(g) 501(6)(h), 503A
Migration Regulations 1994 (Cth), Schedule 2, Public Interest Criterion 4003(a)
Cases cited: George v Rockett (1990) 170 CLR 104
Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414
Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364
Minister for Immigration and Multicultural Affairs v Godley (2005) 141 FCR 552
Date of hearing: 31 January 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 102 Counsel for the Applicant: Mr T. Brennan, Mr N. Sedaghati Solicitor for the Applicant: Kinslor Prince Lawyers Counsel for the Respondent: Mr G. Johnson SC, Mr M. Cleary Solicitor for the Respondent: Australian Government Solicitors ORDERS
NSD 1705 of 2018 BETWEEN: FUD18
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
JUDGE:
THAWLEY J
DATE OF ORDER:
3 FEBRUARY 2020
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The judgment not be published beyond the parties until further order.
3.The parties have until 4:00pm on 7 February 2020 to advise the Court of any orders for redaction sought.
4.Unless either party applies by 4:00pm on 7 February 2020 for a different order with respect to costs, the applicant pay the respondent’s costs.
5.If either party applies for a different order as to costs in accordance with order 4:
(a)the party applying for such an order file with the application for costs:
(i)a submission of not more than 2 pages identifying the order sought and why it is contended such an order should be made;
(ii)any evidence proposed to be relied upon;
(b)the party against whom such an order is sought file within 3 days of receipt of the application:
(i)a responding submission of not more than 2 pages; and
(ii)any evidence relied upon.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THAWLEY J:
BACKGROUND
The applicant is a Vietnamese citizen. On 8 September 2000, the applicant’s wife was granted a subclass 126 Independent visa by the Australian Embassy in Ho Chi Minh City. The applicant and his daughters were granted the same visas as members of the family unit. They came to Australia shortly thereafter.
The applicant’s wife and two daughters remained in Australia until they were granted Australian citizenship on 22 September 2004. The applicant did not become…
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- Case
- [2020] FCA 48
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Minister could lawfully infer from an Interpol red notice that the applicant would present a risk to the Australian community or a segment of it, and whether the Minister could have regard to information outside of the Interpol red notice under s 501(6)(h). The court examined the statutory provisions of the Migration Act and previous case law, including Minister for Immigration and Multicultural Affairs v Godley. The court found that the Minister is required to make a positive finding as to whether a placitum in s 501(6) applies to the applicant, and that if the Minister is unable to reach a positive decision, then the applicant has passed the character test. The court also found that the statutory framework allows for the Minister to have regard to the Interpol regime when making a determination under s 501(6)(h).
The court dismissed the application and found that the Minister was entitled to infer from the Interpol red notice that the applicant would present a risk to the Australian community or a segment of it, and that the Minister was entitled to have regard to information outside of the Interpol red notice under s 501(6)(h). The court ordered that the application be dismissed and that the applicant pay the respondent’s costs, unless either party applied for a different order as to costs. The court also ordered that the judgment not be published beyond the parties until further order, and that the parties have until 4:00pm on 7 February 2020 to advise the Court of any orders for redaction sought.
Orders
Orders of the court
1. The application be dismissed.
2. The judgment not be published beyond the parties until further order.
3. The parties have until 4:00pm on 7 February 2020 to advise the Court of any orders for redaction sought.
4. Unless either party applies by 4:00pm on 7 February 2020 for a different order with respect to costs, the applicant pay the respondent’s costs.
5. If either party applies for a different order as to costs in accordance with order 4:
(a) the party applying for such an order file with the application for costs:
(i) a submission of not more than 2 pages identifying the order sought and why it is contended such an order should be made;
(ii) any evidence proposed to be relied upon;
(b) the party against whom such an order is sought file within 3 days of receipt of the application:
(i) a responding submission of not more than 2 pages; and
(ii) any evidence relied upon.
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
Ratio Decidendi
Legal Principle Established
The applicant also accepted, when asked, that regard could be had to the regulatory regime under which Interpol notices are issued. Indeed, the applicant submitted that it would be necessary to have regard to that regime in considering the issue raised by s 501(6)(h).ConsiderationThe statutory provisions Section 65 provides (notes omitted):65 Decision to grant or refuse to grant visa(1)Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:(a) if satisfied that:(i) the health criteria for it (if any) have been satisfied; and(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and(iii)the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of the same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and(iv)any amount of visa application charge payable in relation to the application has been paid;is to grant the visa; or(b) if not so satisfied, is to refuse to grant the visa. The Minister must grant a visa if he is satisfied of the various requirements of s 65(1)(a) of the Act. These requirements include that the Minister must be satisfied that “the grant of the visa is not prevented by [among other things] s 501”: s 65(1)(a)(iii). If he is not satisfied of each of the requirements of s 65(1)(a), the Minister must refuse to grant the visa: s 65(1)(b). Sections 501(1) and 501(6)(h) provide:501 Refusal or cancellation of visa on character groundsDecision of Minister or delegate—natural justice applies(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.Note: Character test is defined by subsection (6).…Character test(6) For the purposes of this section, a person does not pass the character test if:…(h) an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.Otherwise, the person passes the character test. Section 501(1) provides a discretion to refuse to grant a visa. That discretion only arises “if the person does not satisfy the Minister that the person passes the character test”: s 501(1). The operation of, and interaction between, s 501(1) and s 501(6) were considered by the Full Court in Minister for Immigration and Multicultural Affairs v Godley(2005) 141 FCR 552 (Madgwick, Lander and Crennan JJ). At that time, s 501(6) only contained paragraphs (a) to (d). Their Honours stated:[47]Whether and how the Minister exercises the discretion in s 501(1) depends upon whether the applicant for the visa or the visa holder passes the “character test” and s 501(6) provides a regime whereby a person either does or does not pass the character test.[48]It is clear that a person does not pass the character test if any one or more of the conditions set out in paras (a), (b), (c) and (d) of s 501(6) are fulfilled. For example, if a person has a substantial criminal record, as defined by s 501(7), the person thereby does not pass the character test. Whether or not a person has such a substantial criminal record can only be determined by means of an objective finding by the Minister. Such a finding is therefore implicitly required. If the Minister makes such a determination then, clearly, the person referred to in s 501(1) could not satisfy the Minister that the person passes the character test. In those circumstances, the Minister would then have to exercise his or her discretion as to whether to refuse to grant a visa to the applicant.[49]Thus, s 501(6) requires the Minister to consider the separate matters in paras (a), (b), (c) and (d) and to make a determination whether the person comes within the provisions of any of those paragraphs. In respect of para (c) of s 501(6), the Minister has to consider whether the person is not of good character for either or both of the reasons given in placita (i) or (ii) of that paragraph.[50]If the Minister determines that the person is not of good character, then it must follow that the person does not pass the character test.[51]If, on the other hand, the Minister does not decide that the person comes within any of paras (a), (b), (c) or (d) then, by force of s 501(6), the person has passed the character test. That is so because of the concluding words in the subsection “Otherwise, the person passes the character test”. It follows that, absent any determination or decision by the Minister that the person comes within any of the paragraphs of s 501(6), the person has by force of the express provisions of the subsection passed the character test.[52]In those circumstances, the requirement of s 501(1) that the person satisfy the Minister that he or she passes the character test can require no more than the person passing the character test by reason of the terms of the section itself. Whether the applicant for the visa does or does not pass the character test is something to be determined by the Minister by reference to paras (a), (b), (c) and (d) of s 501(6). [53] It was contended on behalf of the Minister, that no onus lies on the Minister to make any decision under s 501(6). It was argued that, in circumstances where the Minister was unsure whether a person is or is not of good character, the Minister could refuse to decide, for the purposes of s 501(6)(c), whether the applicant for the visa is or is not of good character and, in the event of such a refusal, then the applicant would not have satisfied the Minister that the applicant passes the character test, so that, in those circumstances, the Minister could, in his or her discretion, refuse to grant a visa.[54]That argument should be rejected because it is contrary to the express terms of s 501(6). A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. There is no other way of determining whether one or more of these paragraphs apply than by a positive finding to that effect by the Minister. If the only paragraph under consideration is para (c) in s 501(6), absent any decision by the Minister that the person is not of good character, then the person has passed the character test.[55]It follows, therefore, that if the Minister is unsure whether a person is or is not of good character, is unable to reach a positive decision that the person is not of good character and declines to do so, then, if that is the only matter under consideration, that person will have passed the character test.[56]This is so notwithstanding the requirements in s 501(1) that the person concerned “satisfy” the Minister that he or she passes the character test. An applicant must satisfy the Minister in relation to factual matters relevant to the Minister’s determination of whether a placitum in s 501(6) applies. In effect, s 501(6) provides a complete statement of how the person may satisfy the Minister. The effect of that statement is that, unless a placitum in s 501(6) applies, the person is to be taken as having satisfied the Minister. A placitum in s 501(6) only applies if the Minister determines positively that it does so. [57]In the end result, the power to refuse to grant a visa in the exercise of the Minister’s discretion only arises if the Minister is satisfied of one of the matters in paras (a), (b), (c) or (d) of s 501(6). In this case, the Minister did not make a determination that the respondent was not of good character within the meaning of para (c) or any other of those paragraphs.