Ibrahim v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Ibrahim v Minister for Home Affairs [2019] FCAFC 89

Appeal from: Ibrahim v Minister for Home Affairs [2018] FCA 1592
File number: SAD 275 of 2018
Judges: WHITE, PERRY AND CHARLESWORTH JJ
Date of judgment: 30 May 2019
Catchwords: MIGRATION – appeal from a judgment dismissing the Appellant’s application for judicial review of a decision made under s 501BA(2) of the Migration Act 1958 (Cth) (the Act) to cancel the Appellant’s Class BC Subclass 100 Partner (Migrant) visa – whether the Assistant Minister understood s 501BA(2) as precluding him from providing the Appellant with natural justice – whether the Assistant Minister had conflated Australia’s possible international non-refoulement obligations in respect of the Appellant with the claimed protection obligations under s 36(2)(a) of the Act – whether the errors were material so as to be jurisdictional – appeal allowed.
Legislation:

Migration Act 1958 (Cth) ss 5H, 5J, 36, 47, 195A, 499, 501, 501BA, 501CA

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

Migration Regulations 1994 (Cth) cl 866.225

Cases cited:

Ali v Minister for Immigration and Border Protection [2018] FCA 650

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

BKS18 v Minister for Home Affairs [2018] FCA 1731

Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110

Burgess v Assistant Minister for Home Affairs [2019] FCA 34

CRI028 v The Republic of Nauru [2018] HCA 24; (2018) 356 ALR 50

DOB18 v Minister for Home Affairs [2018] FCA 1523

Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 347 ALR 350

Greene v Assistant Minister for Home Affairs [2018] FCA 919

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1

Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] FCA 1218

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

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

Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180

Omar v Minister for Home Affairs [2019] FCA 279

Plaintiff M70/2011 v Minister for Immigration and Citizenship (the Malaysian Declaration Case) [2011] HCA 32; (2011) 244 CLR 144

R v MacKellar; ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461

R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407

Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391

Sowa v Minister for Home Affairs [2018] FCA 1999

SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18

Turay v Assistant Minister for Home Affairs [2018] FCA 1487

Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22

Date of hearing: 28…
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Details
Case
[2019] FCAFC 89
Decision Date

CaseChat Overview and Summary

In the case of Ibrahim v Minister for Home Affairs, the appellant, a Nigerian national with a history of criminal activity in Australia, appealed against a decision by the Federal Court to dismiss his application for judicial review of a decision to cancel his Class BC Subclass 100 Partner (Migrant) visa under s 501BA(2) of the Migration Act 1958 (Cth). The appellant argued that the Assistant Minister for Home Affairs had misunderstood the legal obligations of Australia's international non-refoulement obligations and the criteria for a protection visa under the Act, leading to a jurisdictional error in his decision-making process.

The court needed to determine whether the Assistant Minister's understanding of the law was correct and if any errors made were material enough to be considered jurisdictional. Specifically, the court had to examine whether the Assistant Minister appreciated the distinction between Australia's international non-refoulement obligations and the criteria for a protection visa under the Act, and if these errors influenced the decision to cancel the appellant's visa.

The court found that the Assistant Minister's reasoning demonstrated an understanding that the appellant's non-refoulement obligations would be addressed in the context of a protection visa application. The Assistant Minister also acknowledged that the appellant might be refused a protection visa despite meeting the criteria, due to ineligibility factors. This understanding was sufficient to distinguish the case from previous decisions and indicated that the Assistant Minister did not have the misunderstanding the appellant claimed. Additionally, the court concluded that the Assistant Minister's use of the term "non-refoulement obligations" should be understood within the context of the statutory framework, and any looseness of language did not reflect a misunderstanding of the distinction between international obligations and the Act's criteria.

The court allowed the appeal, set aside the Federal Court's previous orders, and issued a writ of certiorari quashing the Assistant Minister's decision to cancel the appellant's visa. This decision highlights the importance of a Minister's correct understanding of the law when exercising discretionary powers under the Migration Act.

Orders

Orders of the court

1. The appeal is allowed.

2. The Orders of the Federal Court made on 24 October 2018 in SAD94/2018 be set aside.

3. A writ of certiorari be issued quashing the decision of the Assistant Minister for Home Affairs made on 26 February 2018 to cancel the Appellant’s Class BC (Subclass 100) Partner (Migrant) visa.

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

Background

Background to the litigation

On 24 October 2018, a Judge of this Court dismissed the appellant’s application for judicial review of a decision made by the Assistant Minister for Home Affairs under s 501BA(2) of the Migration Act 1958 (Cth) (the Act) to cancel the appellant’s visa: Ibrahim v Minister for Home Affairs [2018] FCA 1592. The appellant now appeals against that decision.Background circumstances The appellant is a national of Nigeria. He came to Australia on 1 May 2008 as the holder of a Class UF Subclass 30 Partner (Provisional) visa and has been here ever since. He had also been in Australia for short periods in 2006 and 2007, but they are not material for present purposes. On 5 January 2009, the appellant was granted a Class BC Subclass 100 Partner (Migrant) visa. On 17 July 2015, while the appellant was in custody serving a sentence imposed on 17 December 2014, a delegate of the Minister cancelled his visa, pursuant to s 501(3A) of the Act. We will refer to this as the “Cancellation Decision”. However, on 25 August 2016, another delegate of the Minister, acting under s 501CA(4) of the Act, revoked the Cancellation Decision (the Revocation Decision). Subsequently, on 23 May 2017, the then Assistant Minister for Immigration and Border Protection set aside the Revocation Decision and cancelled the appellant’s visa. The Assistant Minister did so pursuant to s 501BA(2) of the Act. On 13 October 2017, this Court made orders quashing the decision of the then Assistant Minister made on 23 May 2017: Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] FCA 1218 (Ibrahim No 2). The Assistant Minister for Home Affairs then considered again the exercise of the power under s 501BA(2) to set aside the revocation of the Cancellation Decision. On 26 February 2018, he made a decision to do so and to cancel the appellant’s visa. It is that decision which is the genesis of the present appeal. The Assistant Minister cancelled the appellant’s visa because he was satisfied that the appellant did not satisfy the character test (by reason of having a “substantial criminal record” as defined in s 501(6)(a) and s 501(7)(c) of the Act) and because he considered that the cancellation was in the national interest. It was common ground that the appellant does have a “substantial criminal record” as the Assistant Minister had found. In the proceedings at first instance, the appellant submitted that two distinct matters meant that the Minister’s decision was affected by jurisdictional error. Both grounds rested on the principle that, as the power of a Minister to set aside a revocation order and to cancel a visa depended on the Minister being satisfied of the matters specified in s 501BA(2), his state of mind had to be formed on a correct understanding of the law and of the legal consequences of his decision. The appellant contended that the Assistant Minister had not had such a correct understanding. The two grounds each involved two parts. It is not necessary to recount those grounds in full, or the way in which the primary Judge dealt with all of them, because, on the appeal, the appellant advanced a more confined position.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Counsel for the appellant submitted that the primary Judge had been wrong in the deference he had given to the decisions in Ali and Greene, as the issue was one of fact. One may accept that the question of whether the Assistant Minister had the claimed misunderstanding of the law does involve issues of fact, but we note that the appellant did not seek to distinguish the circumstances giving rise to the question in either Ali or in Greene from his own. Furthermore, the approach in Ali and in Greene has been followed in subsequent cases: Turay v Assistant Minister for Home Affairs [2018] FCA 1487; BKS18 v Minister for Home Affairs [2018] FCA 1731; Sowa v Minister for Home Affairs [2018] FCA 1999 (all of which involved the review of decisions under s 501CA(4)) and in DOB18 v Minister for Home Affairs [2018] FCA 1523 (involving a review of a decision under s 501BA(2)).Conclusion on Ground 2 In our opinion, the Assistant Minister’s reasons indicate that he understood that:·the appellant is able to make a valid application for a Protection visa;·the existence or otherwise of non‑refoulement obligations would be considered in the course of processing the application;·a Protection visa is the “key mechanism” provided for the consideration of claims that an applicant would suffer harm if returned to his or her home country;·Direction 75 requires decision‑makers to consider the refugee and complementary protection criteria before considering ineligibility criteria; and·the appellant will have his protection claims fully assessed on an application for a Protection visa. It is implicit in the Assistant Minister’s reasons that he appreciated that the appellant may be refused a Protection visa, even if found to satisfy the protection criteria, because of the “ineligibility criteria”. That is, the Assistant Minister understood, using the terminology of the appellant’s submissions, that the consideration of an application for a Protection visa may not be of “benefit” to him, even if he satisfied the protection criteria. Direction 75, to which the Assistant Minister referred, expressly contemplated such an outcome. This is sufficient by itself to distinguish the circumstances of the decision made on 26 February 2018 from those considered in BCR16 and in Ibrahim (No 2) and to indicate that the Assistant Minister did not have the misunderstanding which this Ground imputed to him. For these reasons, Ground 2 fails.Ground 3 Counsel for the appellant accepted that the appellant requires leave to advance Ground 3, as it had not been argued before the primary Judge. By proposed Ground 3, the appellant contends that the Assistant Minister had not understood, when reasoning that Australia’s non‑refoulement obligations in respect of him would be addressed in the context of an application for a Protection visa, that the content of the former differ in material respects from the criteria contained in s 36 of the Act, these being the criteria which would be considered on an application for a Protection visa.

Ratio Decidendi

Legal Principle Established

Counsel for the Minister also submitted that the Assistant Minister should be understood as having used the term “non‑refoulement obligations” and its cognates “within the context of the statutory framework” applying since the 2014 Amendment. This meant, counsel submitted, that the Assistant Minister should be regarded as having used the term to refer to the protection obligations under the Act. Counsel accepted that there may have been some “looseness of language” by the Assistant Minister but that, on a fair reading, his reasons should not be understood as indicating an understanding that Australia’s international obligations would be considered in the application of the s 36 criteria. Consideration The term “non‑refoulement obligations” derives from Art 33 of the Refugees Convention. That Article provides (relevantly):Article 33PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)1.No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.… The scope of the obligation imposed by Art 33 has been discussed by the High Court in several decisions including NAGV and NAGW of 2002 and Plaintiff M47/2012 v Director‑General of Security [2012] HCA 46; (2012) 251 CLR 1. In Plaintiff M70/2011 v Minister for Immigration and Citizenship (the Malaysian Declaration Case) [2011] HCA 32; (2011) 244 CLR 144, Gummow, Hayne, Crennan and Bell JJ said of the non‑refoulement obligation imposed by Art 33(1):[94]… Australia (and any other party to the Refugees Convention and the Refugees Protocol) would act in breach of its international obligations under those instruments if it were to expel or return “in any manner whatsoever” a person with a well‑founded fear of persecution “to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. Accordingly, for Australia to remove a person from its territory, whether to the person’s country of nationality or to some third country willing to receive the person, without Australia first having decided whether the person concerned has a well‑founded fear of persecution for a Convention reason may put Australia in breach of the obligations it undertook as party to the Refugees Convention and the Refugees Protocol, in particular the non‑refoulement obligations undertaken in Art 33(1) of the Refugees Convention.(Citation omitted) The term “non‑refoulement obligations” appears only twice in the Act: in s 197C(1) and (2). It is defined for that purpose in s 5(1). Both s 197C and the definition were inserted into the Act by the 2014 Amendment. The s 5 definition is as follows:non‑refoulement obligations includes, but is not limited to:(a) non‑refoulement obligations that may arise because Australia is a party to:(i) the Refugees Convention; or(ii) the Covenant; or(iii) the Convention Against Torture; and(b)any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).