Hamidy v Minister for Immigration and Border Protection

Case [2019] FCA 221

FEDERAL COURT OF AUSTRALIA

Hamidy v Minister for Immigration and Border Protection [2019] FCA 221

File number: VID 679 of 2017
Judge: MURPHY J
Date of judgment: 27 February 2019
Catchwords: MIGRATION – visa cancellation decision pursuant to s 501(3) of the Migration Act 1958 (Cth) - where the Minister stated, in his reasons for decision, that it was unnecessary to determine whether non-refoulement obligations were owed to the applicant – applying the decision in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 86 – Minister’s decision affected by jurisdictional error – whether relief should be refused in the exercise of discretion – where since the visa cancellation decision a delegate of the Minister had considered and rejected the applicant’s protection claims – held, the applicant entitled to the relief sought
Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Crimes Act 1958 (Vic)
Cases cited:

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

Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107; [1997] FCA 729

DOB18 v Minister for Home Affairs [2018] FCA 1523

Giretti v Federal Commissioner of Taxation (1996) 70 FCR 151

Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780; [2018] HCA 34

Kabir v Minister for Immigration and Citizenship [2010] FCA 1164

Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181; [2007] FCAFC 62

Minister for Immigration and Border Protection v BHA17 (2018) 362 ALR 9; [2018] FCAFC 68

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
Date of hearing: 11 October 2018
Date of last submissions: 2 November 2018
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 64
Counsel for the Applicant: Mr N M Wood
Solicitor for the Applicant: Clothier Anderson & Associates
Counsel for the Respondent: Mr G A Hill
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 679 of 2017
BETWEEN:

KAZ HAMIDY

Applicant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

JUDGE:

MURPHY J

DATE OF ORDER:

27 FEBRUARY 2019

THE COURT ORDERS THAT:

1.The Respondent’s decision of 18 May 2017 to cancel the Applicant’s Refugee and Humanitarian (Migrant) (Class BA) (Subclass 200) 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.


REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

  1. In this proceeding the applicant, Mr Kaz Hamidy, seeks judicial review of a decision of the respondent, the Minister for Immigration and Border Protection, acting personally, to cancel Mr Hamidy’s Refugee and Humanitarian (Migrant) (Class BA) (Subclass 200) visa (refugee visa). The Minister decided to cancel Mr Hamidy’s visa…

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AGLC
Hamidy v Minister for Immigration and Border Protection [2019] FCA 221
Case
[2019] FCA 221
Decision Date

CaseChat Overview and Summary

The case of Hamidy v Minister for Immigration and Border Protection involved Mr Hamidy, who had been granted a refugee visa and arrived in Australia in 1998. The Minister for Immigration and Border Protection sought to cancel Mr Hamidy’s visa under section 501(3) of the Migration Act 1958 (Cth) on the grounds that he had a substantial criminal record. The Federal Court was tasked with determining whether the Minister’s decision to cancel Mr Hamidy’s visa was legally sound, particularly in light of the Minister’s failure to address Mr Hamidy’s non-refoulement obligations in his reasons for decision.

The primary legal issue before the court was whether the Minister’s visa cancellation decision was affected by a jurisdictional error. Specifically, the court had to determine if the Minister’s failure to consider Mr Hamidy’s non-refoulement obligations constituted a jurisdictional error that rendered the decision unlawful. This issue was informed by the decision in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 86, which established that the Minister must consider non-refoulement obligations when deciding to cancel a visa. The court also considered whether, given the jurisdictional error, relief should be refused in the exercise of the court’s discretion, especially since a delegate of the Minister had subsequently considered and rejected Mr Hamidy’s protection claims.

The court held that the Minister’s decision was indeed affected by a jurisdictional error because he failed to consider Mr Hamidy’s non-refoulement obligations. The court found that the Minister’s reasons for decision did not address these obligations, which is a critical requirement under the Act. In applying the reasoning from BCR16, the court determined that the failure to consider these obligations constituted a jurisdictional error. Consequently, the visa cancellation decision was quashed. The court further determined that since a delegate of the Minister had already considered and rejected Mr Hamidy’s protection claims, it was not appropriate to exercise its discretion to refuse relief. Therefore, Mr Hamidy was granted the relief he sought.

The Federal Court quashed the Minister’s decision to cancel Mr Hamidy’s visa and ordered the Minister to pay Mr Hamidy’s costs. This decision underscores the importance of considering non-refoulement obligations in visa cancellation decisions and highlights the consequences of failing to address such obligations in the Minister’s reasons for decision.

Orders

Orders of the court

1. The Respondent’s decision of 18 May 2017 to cancel the Applicant’s Refugee and Humanitarian (Migrant) (Class BA) (Subclass 200) 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

Section 501(3) confers a discretionary power on the Minister to cancel a person’s visa if the Minister reasonably suspects the person does not pass the “character test” in subs (6) and the Minister is satisfied that cancellation is in the national interest. Section 501(6)(a) provides that a person does not pass the character test if “the person has a “substantial criminal record” (as defined by subsection (7))”. Section 501(7)(c) provides that for the purposes of the character test a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more”.THE FACTSMr Hamidy’s history of criminal offending Having been found by the UNHCR to be a refugee, Mr Hamidy was granted a refugee visa and he arrived in Australia on 21 July 1998. The evidence discloses that he has a lengthy history of criminal offending beginning in 2001, including convictions for offences involving assault, assault with a weapon, armed robbery, reckless conduct endangering serious injury, recklessly causing injury and intentionally causing injury, dishonesty, drug offences, multiple driving offences and multiple breaches of judicial orders. I will not set out the full history of Mr Hamidy’s criminal conduct and it suffices to note the two most significant convictions and sentences, being:(a)8 April 2008 – convictions for the following offences with concurrent sentences (except as stated below):(i)burglary – 15 months’ imprisonment;(ii)obtaining financial advantage by deception – 9 months’ imprisonment, cumulative;(iii)theft (two counts) – 8 months’ imprisonment on each count;(iv)obtaining property by deception (10 counts) – 6 months’ imprisonment on each count;(v)attempt to obtain property by deception (two counts) – 4 months’ imprisonment on each count;(vi)attempted theft; (vii)possession of a drug of dependence – 1 month imprisonment; (viii)licence cancelled for 2 months; and(ix)ordered to pay compensation of $72,039.These convictions resulted in a total effective sentence of three years and four months; and(b)5 August 2011 – convictions for false imprisonment with a sentence of 30 months’ imprisonment, and for common law assault with a sentence of one month to be served concurrently. The total term of imprisonment was two years and six months.Earlier visa decisions On 18 April 2012 a delegate of the Minister considered whether to cancel Mr Hamidy’s visa under s 501(2) of the Act. The delegate was satisfied that Mr Hamidy did not pass the character test, but exercised the discretion not to cancel his visa and instead gave him a warning that his visa may be cancelled if he engaged in further criminal conduct. On 28 August 2015 (without Mr Hamidy having been convicted of any further offence following that warning) the Minister purported to cancel Mr Hamidy’s visa under s 501(3) of the Act. The Minister decided that he reasonably suspected that Mr Hamidy did not pass the character test and that visa cancellation was in the national interest. Mr Hamidy applied for judicial review and on 7 March 2017 the Court made orders by consent to quash the decision.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 10 May 2016 Mr Hamidy was convicted of further criminal offences, namely unlicensed driving and intentionally recording a court proceeding without authorisation, but no imprisonment or fine appears to have been imposed at that time. The further hearing of the charges was adjourned to 9 May 2017.The visa cancellation decision of 18 May 2017 On 11 May 2017 the Department of Immigration and Border Protection (Department) prepared a brief to the Minister to again decide whether to consider cancelling Mr Hamidy’s refugee visa under s 501(2) or (3) of the Act and, if so, whether to cancel Mr Hamidy’s visa (the brief). The brief addressed various considerations pertinent to the Minister’s decision. Relevantly to the grounds of the application before the Court the brief said the following (emphasis in original):International non-refoulement obligations[63]In a submission dated 8 September 2015, Mr HAMIDY’s legal representatives stated his removal from Australia to his home region of Basra, Iraq would constitute a breach of Australia’s non-refoulement obligations, stating his family were mandated as refugees by the UNHCR prior to their resettlement in Australia in 1998 (Attachment T). Previous submissions from 2012 also include that he is fearful of returning to Basra (Attachment H).[64]Submissions made on 7 March 2017 stated Mr HAMIDY’S removal to Iraq “would expose him to a real chance of persecution, or a real risk of significant harm, contrary to Australia’s protection obligations”. The submissions include references and excerpts from a number of open source reports to illustrate the dangers he would face if returned to his home region in Iraq, including terror attacks, sectarian violence, a rise in criminality and the weakening of state authority. The submissions also include legal arguments as to the Department’s need to consider the consequence of Mr HAMIDY’s removal to Iraq before exercising the power to cancel his visa (Attachment FF, p.8).[65] Since Mr HAMIDY would be able to make a valid application for a Protection visa should his current visa be cancelled, any protection claims that he may wish to make would be considered at that time. On 18 May 2017 the Minister decided to exercise his discretion to cancel Mr Hamidy’s visa under s 501(3)(b) of the Act and provided written reasons for that decision (the Minister’s reasons) as drafted by the Department. The Minister’s reasons state, and it is uncontentious, that by reason of Mr Hamidy’s 2011 convictions for which he was sentenced to 30 months’ imprisonment, he had a “substantial criminal record” as defined by s 501(7)(c). On this basis the Minister reasonably suspected that Mr Hamidy did not pass the character test under s 501(6) of the Act. The Minister then considered whether it was in the national interest to cancel Mr Hamidy’s visa. He decided that it was, having regard to the nature and seriousness of Mr Hamidy’s history of criminal offending including the recent convictions in May 2016 (which, although minor, had been committed by Mr Hamidy while he was on bail for pending matters), and that he had been identified as a person who associated with an outlaw motorcycle gang and with a person who has been involved in criminal conduct.

Ratio Decidendi

Legal Principle Established

Before turning to the Minister’s submissions it is convenient to set out the areas of agreement between the parties regarding the operation of the Act.The operation of the Act The Act relevantly provides two different pathways for review of a visa cancellation or refusal decision by the Minister or his or her delegate under the Act. Subject to presently irrelevant exceptions:(a)a decision to cancel or refuse a protection visa made relying on ss 5H(2), 36(1B), 36(1C), 36(2C)(a) and (b), or 501(1) is reviewable by the Tribunal in its “General Division” on application under section 500 of the Act: ss 411(1)(c) and 500(1)(b), 1(c), and (4)(c); and(b)otherwise, a decision to refuse a visa is a “Part 7-reviewable decision” reviewable by the Tribunal in its “Migration and Refugee Division” on application under s 412 of the Act: s 411(1)(c).It is common ground that as the delegate’s decision to refuse to grant Mr Hamidy a protection visa did not rely on ss 5H(2), 36(1B), (1C), (2C)(a) or (b) it is a Part 7-reviewable decision. In conducting its review of a Part 7-reviewable decision the Tribunal may exercise all of the powers and discretions that are conferred by the Act on the Minister or his or her delegate: s 415(1). On face value that would include the power under s 65(1)(b) to refuse to grant a protection visa to the applicant on the basis that he failed to satisfy any of the criteria for a protection visa (including, for example, the criteria in sections 36(1B) or (1C)). The parties agree however, that in light of the Full Court’s reasoning in Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107; [1997] FCA 729 (Daher) at 110-111, s 415 must be read in light of sections 412 and 500 of the Act, which set up the two separate pathways for review referred to above. In Daher a delegate of the Minister refused to grant the applicant a protection visa on the basis that he was not a refugee as defined in Art 1A of the Refugees Convention. The applicant applied to the Refugee Review Tribunal (RRT) for review of the delegate’s decision. The RRT refused the application for review, not on the basis that the applicant was not a refugee, but on the basis that the applicant was excluded from protection by Art 1F of the Refugees Convention. Pursuant to the Act at that time, applications for review of decisions to refuse a visa relying on Arts 1F, 32 or 33 of the Refugees Convention were reviewable on application under section 500. The applicant then applied to the Administrative Appeals Tribunal to review the RRT’s decision under s 500(1)(c) of the Act and the Tribunal held that it had no jurisdiction to review the RRT’s decision. The Full Court held that:…if the decisions which the Refugee Review Tribunal had jurisdiction to review did not include a decision to refuse to grant a protection visa relying upon Arts 1F, 32 or 33(2), then it follows that the Tribunal could not on review adjudicate Arts 1F, 32 or 33(2) issues, even if (or especially if) such issues were advanced for the first time on review.