HVLC v Minister for Home Affairs

Case [2019] FCA 616

FEDERAL COURT OF AUSTRALIA

HVLC v Minister for Home Affairs [2019] FCA 616

File number: WAD 542 of 2018
Judge: COLVIN J
Date of judgment: 3 May 2019
Catchwords: MIGRATION - application for judicial review of decision of the Administrative Appeals Tribunal affirming Minister's decision to refuse to grant a safe haven enterprise visa - where applicant did not pass the character test in s 501(6) of the Migration Act 1958 (Cth) - where Tribunal was bound to comply with Direction No 65 - whether safe haven enterprise visa was a short stay visa - whether Tribunal misdirected itself as to the legal consequences of its decision - application dismissed
Legislation:

Migration Act 1958 (Cth) ss 35A, 37A, 195A, 197AB, 197C, 198, 499, 501, Part 2

Migration Regulations 1994 (Cth) Schedule 2
Cases cited:

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

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

DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; (2017) 253 FCR 576

Minister for Home Affairs v HSKJ [2018] FCAFC 217

Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; (2018) 260 FCR 523

Navoto v Minister for Home Affairs [2019] FCA 295

Williams v Minister for Immigration and Citizenship [2013] FCA 702
Date of hearing: 1 May 2019
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 27
Counsel for the Applicant: Mr HW Glennister
Solicitor for the Applicant: Cathal Smith Legal Pty Ltd
Counsel for the First Respondent: Mr PR MacLiver
Solicitor for the First Respondent: Sparke Helmore Lawyers
Counsel for the Second Respondent: The Second Respondent did not appear

ORDERS

WAD 542 of 2018
BETWEEN:

HVLC

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

COLVIN J

DATE OF ORDER:

3 MAY 2019

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant do pay the first respondent's costs of the application to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

COLVIN J:

  1. The grant of a safe haven enterprise visa to the applicant was refused by a delegate of the Minister on the basis that the applicant did not pass the character test stated in s 501(6) of the Migration Act 1958 (Cth). The Minister's decision was affirmed by the Administrative Appeals Tribunal. The applicant now seeks judicial review of the Tribunal's decision. The application raises three grounds. For the following reasons each of those grounds should not be upheld and the application for review should be dismissed.

    Direction No 65

  2. In making its decision, the Tribunal was bound to comply with Direction No 65 made by the Minister under s 499 of the Act: s 499(2A) and Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [41]. The Direction applies when consideration is…

Continue reading HVLC v Minister for Home Affairs

Sign in free to access the full text

Details
AGLC
HVLC v Minister for Home Affairs [2019] FCA 616
Case
[2019] FCA 616
Decision Date

CaseChat Overview and Summary

In the matter of HVLC v Minister for Home Affairs, the Federal Court of Australia considered an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) that upheld the Minister for Home Affairs' refusal to grant a safe haven enterprise visa to the applicant. The refusal was based on the applicant failing the character test outlined in section 501(6) of the Migration Act 1958 (Cth). The applicant contended that the AAT erred in its interpretation of the legal consequences arising from its decision, particularly in relation to the practicalities of removal and the non-refoulement obligation.

The central legal issues in this case revolved around whether the safe haven enterprise visa was a short stay visa and, if so, whether the AAT misdirected itself by not adequately considering the practical implications of the visa refusal and the subsequent removal of the applicant. The court had to determine if the AAT was bound by Direction No 65 and whether it correctly understood the ramifications of its decision, particularly in light of the impracticality of immediate removal and the obligation not to refoule the applicant.

The Federal Court found that the AAT was not misdirected in its understanding of the consequences of its decision. The Tribunal was cognizant of the fact that removal would eventually take place, regardless of the non-refoulement obligation owed to the applicant. The court held that the AAT had appropriately applied the law and that the applicant had not demonstrated any misdirection on the part of the Tribunal. Consequently, the application for judicial review was dismissed, with the applicant ordered to pay the Minister's costs of the application, to be assessed if not agreed.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant do pay the first respondent's costs of the application to be assessed 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

However, before the Tribunal the impracticality of removal (at least for a time) was accepted. More importantly, the Tribunal was plainly aware of the consequence that there would be removal once practicable and such removal would occur irrespective of the non‑refoulement obligation that the Tribunal found was owed to the applicant (see, in particular, para 86). Therefore, it has not been shown that the Tribunal misdirected itself as to the consequences that would flow for the applicant if the application for a protection visa was refused.Conclusion and costs For the above reasons the grounds of the application have not been made out. It was accepted that costs should follow the event. The application for judicial review should be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.