Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
File number:
NSD 1073 of 2016
Judge:
ROBERTSON J
Date of judgment:
12 October 2016
Catchwords:
MIGRATION – cancellation of visa on character grounds where substantial criminal record – request for revocation of cancellation decision under s 501CA of the Migration Act 1958 (Cth) – decision by Minister not to revoke cancellation decision – whether error of law – whether failure to take into account a mandatory consideration
Legislation:
Migration Act 1958 (Cth) ss 501(3A), 501CA(3), 501CA(4)
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of paragraphs:
57
Counsel for the Applicant:
Mr D Hughes with Mr S Jayasuriya
Solicitor for the Applicant:
D’Ambra Murphy Lawyers
Counsel for the Respondent:
Mr P Knowles
Solicitor for the Respondent:
Australian Government Solicitor
ORDERS
NSD 1073 of 2016
BETWEEN:
MUNESH GOUNDAR
Applicant
AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
12 OCTOBER 2016
THE COURT ORDERS THAT:
1.The decision of the respondent made on 11 May 2016 be quashed.
2.The matter be remitted to the respondent to re-determine according to law.
3.The respondent pay the applicant’s costs of the application, as taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ROBERTSON J:
Introduction
By his amended application for judicial review dated 16 September 2016 the applicant, who is a citizen of Fiji, applied to the Court to review the decision of the respondent made on 11 May 2016 not to revoke the visa cancellation decision made under s 501(3A) of the Migration Act 1958 (Cth).
The applicant’s Class BC Subclass…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Case
[2016] FCA 1203
Decision Date
CaseChat Overview and Summary
The case of Goundar v Minister for Immigration and Border Protection involved the applicant, an individual whose visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to a criminal record, challenging the decision of the Minister not to revoke the cancellation. The applicant had made representations to the Minister, arguing that he faced a risk of retribution from the victim’s family in Fiji, which was not adequately protected by a potential application for a protection visa. The applicant contended that the Minister had made an error of law or failed to consider a relevant factor in deciding not to revoke the visa cancellation.
The legal issues before the court were whether the Minister had erred in law by not revoking the visa cancellation and whether the Minister had failed to consider a relevant factor that the applicant had raised. Specifically, the court had to determine if the Minister had correctly assessed the risk of non-Protection Visa (non-PV) harm and if this risk constituted a mandatory consideration under section 501CA(4) of the Act.
The court found that the Minister had indeed made an error in his decision-making process. The Minister had limited his consideration to harm that implicated Australia's international non-refoulement obligations, disregarding the broader risk of harm that the applicant had presented. This error was compounded by the Minister's failure to address the applicant’s representation about the risk of retribution, which was not tied to Australia’s legal obligations but was a factual risk to the applicant's safety. The court concluded that the Minister had not adequately considered the risk of non-PV harm, which was a mandatory consideration under the Act as it had been raised by the applicant.
The decision of the Minister was quashed, and the matter was remitted for reconsideration in accordance with the law. The Minister was also ordered to pay the applicant’s costs of the application.
Orders
Orders of the court
1. The decision of the respondent made on 11 May 2016 be quashed.
2. The matter be remitted to the respondent to re-determine according to law.
3. The respondent pay the applicant’s costs of the application, as taxed if not agreed.
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 was in the following terms, so far as relevant:501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)(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.(5)If the Minister revokes the original decision, the original decision is taken not to have been made.(6) Any detention of the person that occurred during any part of the period:(a) beginning when the original decision was made; and(b) ending at the time of the revocation of the original decision;is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.(7)A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.Note: For notification of decisions under subsection (4) to not revoke, see section 501G.The application The application for judicial review claimed that there had been legal error in the conclusion of the Minister under s 501CA(4)(b)(ii) that he was not satisfied that there was another reason why the original decision should be revoked. The amended application, to which there was no procedural objection on the part of the Minister, was in the following terms:1.In deciding not to revoke the cancellation of the applicant's visa pursuant to s 501CA(4) Migration Act 1958 (Cth) (Act), the respondent made an error of law, or further and alternatively failed to consider a relevant consideration.Particulars(a)On 17 December 2014 the applicant’s Class BC Spouse Visa (visa) was cancelled under s 501(3A) of the Act. The visa was cancelled because the applicant had been convicted of manslaughter and was serving a sentence of imprisonment as a result.(b)Pursuant to s 501CA(3) of the Act, the applicant was invited to, and did, make representations to the respondent about why the decision to cancel his visa should be revoked.(c)As part of those representations. the applicant gave as a reason supporting revocation of his visa the risk to his safety in Fiji arising from retribution from members of the victim’s family. See Court Book (CB) page 151.(d)The departmental submission to the respondent noted that this submission had been made: CB page 10 [28], page 12 [42]-[43].(e)The respondent found that he did not need to consider the risk from relatives because the applicant was free to apply for a protection visa: p 29 [17].(f)The respondent made an error of law, because the possibility that the applicant could apply for a protection visa did not protect him from all forms of harm from relatives. In particular, a protection visa would not protect the applicant against harm that:(i)was motivated for reasons of personal revenge only (and so was not persecution for any of the reasons identified in s 5J(1)(a) necessary to found a refugee claim); and(ii)fell short of the definition of “significant harm” in s 36(2A) of the Act.(non-PV Harm)(g)Further and alternatively, the Minister made an error of law by treating nonPV Harm as irrelevant.(h)Further and alternatively, the Minister failed to consider whether he should revoke the cancellation because of the risk of non-PV Harm from relatives of the victim. This was a mandatory consideration under s 501CA(4) because it had been given as a reason by the applicant in response to an invitation under s 501CA(3) .The relevant facts
Ratio Decidendi
Legal Principle Established
In any event, the Minister submitted, procedural fairness did not require him to separately assess the prospect that the applicant might face a risk of non-PV harm. The representations made in respect of the risk of retribution (set out above) were brief. They were contained within extensive written submissions dealing with other matters. They were unsupported by evidence other than the assertions of the applicant’s mother and brother. The applicant himself expressed no subjective fear of retribution. Importantly, neither these representations nor the evidence before the Minister drew any distinction between non-PV harm and harm that could satisfy the criteria of a Protection visa. The risk of non-PV harm was, therefore, not a substantial, clearly articulated argument relying upon established facts that procedural fairness required the Minister to address: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24].Consideration The first necessary step is to make findings as to the basis on which the Minister decided not to revoke the original decision to cancel the applicant’s visa. In my opinion, it is clear that the Minister recognised that one of the applicant’s representations was that there was a risk of retribution against him from the victim’s family as well as from his former wife’s family if he returned to Fiji. This was stated in the Minister’s reasons at [12]. It is also clear from [17] of those reasons that the Minister dealt with that representation by reasoning that it was unnecessary to deal with it in considering the question of revocation of the original decision because that representation might give rise to non-refoulement obligations owed to the applicant but that the applicant was able to make a valid application for a Protection visa. While this approach may be unimpeachable in particular cases, see the authorities discussed in Le at [41]-[65], it is to be noted that in the present case the applicant had never had a Protection visa, had not applied for a Protection visa, had not indicated he would so apply and had not in his representations in accordance with the Minister’s invitation raised such an indication or contended that the Minister should revoke the original decision because Australia had obligations to him that would or might found an application for a Protection visa. The relevant representation was that there was a risk of retribution and a risk to the applicant’s safety as a matter of fact and not as an engagement of Australia’s legal obligations. I do not accept the Minister’s submission, at [22] of his written submissions, that it cannot be inferred that the Minister limited his consideration to harm that did engage Australia’s international non-refoulement obligations and that the proper inference in this case was not that the Minister failed to consider the applicant’s representation but that he had determined that a risk of non-PV harm was not material to the exercise of his discretion. Consistently with that written argument, it was put in oral submissions on behalf of the Minister that the Minister was entitled to take into account the matters which he considered relevant and the appropriate characterisation of what the Minister had done was that the submission made by the applicant could or may give rise to questions of non-refoulement but the Minister otherwise considered that issues that did not raise such obligations were not relevant to his decision. In my opinion, that submission requires Ministerial Direction No. 65 made under s 499 of the Migration Act to do too much work by reference to what it does not say and in circumstances where it was not binding on the Minister. Further, the applicant’s representation said nothing at all about any distinction between categories of harm. It was the officer of the Department and subsequently the Minister who introduced such a distinction. In addition, the Minister did not say in his reasons for decision that any non-PV harm would be treated by him as irrelevant to the question of revocation and it is not easy to see why the Minister would so reason.