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Hernandez v Minister for Home Affairs

Hernandez v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA
Hernandez v Minister for Home Affairs [2020] FCA 415

File number: SAD 211 of 2018

Judge: CHARLESWORTH J

Date of judgment: 31 March 2020

Catchwords: MIGRATION – mandatory cancellation of visa on character grounds –– non-citizen making representations to Minister for Home Affairs as to why cancellation decision should be revoked – non-citizen claiming to fear harm of kidnap for ransom and murder if returned to El Salvador – whether Minister failed to consider non-citizen’s claims – whether Minister failed to determine whether the non-citizen was a person to whom non-refoulement obligations were owed – whether failure to consider constituted jurisdictional error

Legislation:
Migration Act 1958 (Cth) ss 5, 5M, 14, 36, 45, 47, 65, 189, 196, 197C, 198, 199, 200, 474, 499, 501, 501CA, 501E

Migration Regulations 1994 (Cth) cl 866.225; Schs 2, 4

Cases cited:
DOB18 v Minister for Home Affairs [2019] FCAFC 63

Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123

Ibrahim v Minister for Home Affairs [2019] FCAFC 89

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

Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151

Viane v Minister for Immigration and Border Protection (2018) 263 FCR 56

Date of hearing: 12 December 2019

Registry: South Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 68

Counsel for the Applicant: Mr McDonald

Solicitor for the Applicant: Cifuentes Law

Counsel for the Respondent: Ms C Symonds

Solicitor for the Respondent: Australian Government Solicitor

ORDERS

SAD 211 of 2018

BETWEEN:
JOSE RAUL HERNANDEZ

Applicant

AND:
MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:

CHARLESWORTH J

DATE OF ORDER:

31 MARCH 2020

THE COURT ORDERS THAT:
1.The application is allowed.
2.A writ of certiorari issue quashing the decision of the respondent made on 14 February 2018 not to revoke the cancellation of the applicant’s Class BB (Subclass 155) Five Year Resident Return visa.
3.A writ of Mandamus issue compelling the respondent to exercise the power conferred by s 501CA(4) of the Migration Act 1958 (Cth) in relation to the applicant in accordance with the law.
4.The respondent is to pay the applicant’s costs of the application, as agreed or assessed.
5.The time to commence an appeal from the orders in paragraphs 1, 2 and 3 be extended so as to expire on 30 June 2020.
6.The parties have liberty to apply to:
(a)vary or revoke the order in paragraph 4, such liberty to be exercised within seven days; and/or
(b)further extend the period specified in paragraph 5, such liberty to be exercised on or…

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

Case: [2020] FCA 415
Decision Date: 31 March 2020

CaseChat Overview and Summary

Hernandez v Minister for Home Affairs involved the Minister for Home Affairs' decision not to revoke the cancellation of the applicant's visa on character grounds. The applicant, Mr Hernandez, a non-citizen, had submitted representations to the Minister arguing that his return to El Salvador would result in harm, including potential kidnapping and murder. The applicant claimed that the Minister failed to consider his representations adequately and to determine whether non-refoulement obligations applied to his situation.

The legal issues before the court were whether the Minister failed to consider the applicant's claims, and whether the Minister failed to determine whether the applicant was a person to whom non-refoulement obligations were owed. The court examined whether these failures constituted a jurisdictional error. The applicant argued that the Minister did not properly consider his representations and did not assess whether he was subject to non-refoulement obligations, which could have affected the decision-making process.

The court found that the Minister had indeed failed to consider the applicant's claims properly. The Minister's decision did not address the applicant's specific concerns regarding the dangerous conditions in El Salvador and the potential harm he would face. Additionally, the Minister did not determine whether non-refoulement obligations applied, which was a critical oversight. The court held that these failures amounted to a jurisdictional error, as the Minister did not comply with conditions attending the exercise of power, which could have led to a different decision.

The court allowed the application, quashed the Minister's decision, and compelled the Minister to reconsider the visa cancellation in accordance with the law. The Minister was ordered to pay the applicant's costs, and the time for appeal was extended to 30 June 2020. The parties were granted liberty to apply to vary or revoke the costs order or to extend the appeal period.

Orders

Orders of the court

1. The application is allowed.

2. A writ of certiorari issue quashing the decision of the respondent made on 14 February 2018 not to revoke the cancellation of the applicant’s Class BB (Subclass 155) Five Year Resident Return visa.

3. A writ of Mandamus issue compelling the respondent to exercise the power conferred by s 501CA(4) of the Migration Act 1958 (Cth) in relation to the applicant in accordance with the law.

4. The respondent is to pay the applicant’s costs of the application, as agreed or assessed.

5. The time to commence an appeal from the orders in paragraphs 1, 2 and 3 be extended so as to expire on 30 June 2020.

6. The parties have liberty to apply to:

(a) vary or revoke the order in paragraph 4, such liberty to be exercised within seven days; and/or

(b) further extend the period specified in paragraph 5, such liberty to be exercised on or before 14 June 2020.

7. Any application made in accordance with the order in paragraph 6 is to be determined on the papers.

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

A failure to comply with a condition attending the exercise of power will not ordinarily satisfy the threshold of materiality unless it can be shown that compliance with the condition could have resulted in the making of a different decision: Hossain at [31].THE MINISTER’S DECISION In his handwritten representations to the Minister, Mr Hernandez said:I understand that my visa has been cancelled and I am to be deported back to the country of my birth, in El Salvador. Since hearing this news I have suffered depression and panic attacks. The situation in my home country, for me, is extremely dangerous to my life and welfare and my return under those conditions will most likely result in adversely affecting my family in Australia, as well. Returning to El Salvador will likely be a death sentence for me. Many people there are killed every day by the Mafias who control it. People like me, who have family in first world countries as Australia are often kidnapped and held for ransom. They demand money from our families who often cannot pay. Often they kill the kidnapped person anyway. I would be a prime target of these people. There is much human trafficking and drug trafficking there. What I say about the conditions in my country and the danger to my life, as well as the burdens to my family in Australia, can be confirmed by the El Salvador consulate or embassy. Please, I would rather remain in jail in Australia for the days of my life than be returned as ‘set free’ to El Salvador. The Minister broadly summarised these claims at [17] of his reasons. He noted that the concerns expressed by Mr Hernandez had been echoed in representations made by Mr Hernandez’s sons. He continued:18.I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of Mr Hernandez for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application.19.A protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Furthermore, I am aware that my Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under s499 of the Act (Direction 75) which, among other things, requires that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referring the application for consideration under s501. I am therefore confident that Mr HERNANDEZ would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.20.I have also considered Mr HERNANDEZ’s claims of harm upon return to El Salvador outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether Mr HERNANDEZ’s claims are such as to engage non-refoulement obligations, Mr HERNANDEZ would face hardship arising from his religion and the generally dangerous security situation were he to return to El Salvador.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	SAD 211 of 2018
Judge:	CHARLESWORTH J
Date of judgment:	31 March 2020
Catchwords:	MIGRATION – mandatory cancellation of visa on character grounds –– non-citizen making representations to Minister for Home Affairs as to why cancellation decision should be revoked – non-citizen claiming to fear harm of kidnap for ransom and murder if returned to El Salvador – whether Minister failed to consider non-citizen’s claims – whether Minister failed to determine whether the non-citizen was a person to whom non-refoulement obligations were owed – whether failure to consider constituted jurisdictional error
Legislation:	Migration Act 1958 (Cth) ss 5, 5M, 14, 36, 45, 47, 65, 189, 196, 197C, 198, 199, 200, 474, 499, 501, 501CA, 501E Migration Regulations 1994 (Cth) cl 866.225; Schs 2, 4
Cases cited:	DOB18 v Minister for Home Affairs [2019] FCAFC 63 Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Ibrahim v Minister for Home Affairs [2019] FCAFC 89 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151 Viane v Minister for Immigration and Border Protection (2018) 263 FCR 56
Date of hearing:	12 December 2019
Registry:	South Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	68
Counsel for the Applicant:	Mr McDonald
Solicitor for the Applicant:	Cifuentes Law
Counsel for the Respondent:	Ms C Symonds
Solicitor for the Respondent:	Australian Government Solicitor

JUDGE:	CHARLESWORTH J
DATE OF ORDER:	31 MARCH 2020