FEDERAL COURT OF AUSTRALIA
Ibrahim v Minister for Home Affairs [2018] FCA 1592
File number: SAD 94 of 2018 Judge: BESANKO J Date of judgment: 24 October 2018 Catchwords: ADMINISTRATIVE LAW – application for judicial review of a decision made by the Assistant Minister for Home Affairs (Assistant Minister) – where application for judicial review is before this Court in its original jurisdiction by reason of s 476A of the Migration Act 1958 (Cth)
MIGRATION – where Assistant Minister made a decision to set aside a decision under s 501CA(4) of the Migration Act to revoke a cancellation of the applicant’s subclass 100 Partner (Migrant) visa under s 501(3A) and to cancel the visa – where applicant has a substantial criminal record – where no dispute that the applicant did not pass the character test – where Assistant Minister considered the national interest and, in that context, the seriousness of the applicant’s criminal conduct and how it was dealt with by the courts, the risk of the applicant reoffending and the possible harm to the Australian community were he to do so – where applicant claims that he faces a risk of harm if he is returned to Nigeria
ADMINISTRATIVE LAW – whether Assistant Minister failed to proceed on a correct understanding of the law and the legal consequences of the decision – whether Assistant Minister erred in failing to appreciate the difference between an assessment of the facts against the criteria for a protection visa and taking account of, for the purposes of exercising a discretion under s 501BA(2) of the Migration Act, the risk of harm to a person if he is returned to the country of his nationality – whether Assistant Minister failed to understand that even if, on a protection visa application, it is found that Australia owed protection obligations to the applicant the application for such a visa might be refused, having regard to s 36(1B) of the Migration Act, s 36(1C) of the Migration Act, or the public interest criteria in cl 4001 of Schedule 4 of the Migration Regulations 1994 (Cth)
ADMINISTRATIVE LAW – whether Assistant Minister misunderstood his power to alleviate or eliminate the disadvantages he acknowledged in proceeding under s 501BA(2) of the Migration Act, particularly in terms of natural justice – whether Assistant Minister failed to appreciate that he could have provided natural justice in the course of his decision-making process under s 501BA(2), or at least sought updated submissions, and whether, if so, such a misunderstanding amounted to a jurisdictional error – whether Assistant Minister’s decision to proceed under s 501BA(2) without according natural justice to the applicant, or at least an opportunity to make submissions, was unreasonable within the principles identified by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Legislation: Migration Act 1958 (Cth) ss 36, 476A, 499, 501, 501BA, 501CA
Migration Regulations 1994 (Cth) cl 866.225 of Sch 2, cl 4001 of Sch 4
Cases…
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- AGLC
- Ibrahim v Minister for Home Affairs [2018] FCA 1592
- Case
- [2018] FCA 1592
- Decision Date
CaseChat Overview and Summary
In the Federal Court, the applicant, Mr Ibrahim, sought judicial review of a decision made by the Assistant Minister for Home Affairs (Assistant Minister). The Assistant Minister had set aside a decision under s 501CA(4) of the Migration Act 1958 (Cth) to revoke a cancellation of the applicant's subclass 100 Partner (Migrant) visa under s 501(3A) and subsequently cancelled the visa. The applicant, who has a substantial criminal record, did not dispute that he did not pass the character test. The Assistant Minister had considered the national interest and the risks associated with the applicant's potential reoffending. The applicant claimed that he faced a risk of harm if returned to Nigeria.
The court was required to decide whether the Assistant Minister erred in his understanding of the law and the legal consequences of his decision. Specifically, the court needed to determine if the Assistant Minister misunderstood the difference between assessing facts against the criteria for a protection visa and considering the risk of harm to the applicant if returned to his country of nationality. Additionally, the court needed to consider whether the Assistant Minister failed to appreciate that he could have provided natural justice in his decision-making process, and if such a failure amounted to a jurisdictional error.
The court found that the Assistant Minister's decision did not exhibit any jurisdictional error. The Assistant Minister had correctly exercised his power under s 501BA(2) of the Migration Act, considering both the national interest and the seriousness of the applicant's criminal conduct. The court noted that the Assistant Minister's decision was not reviewable under Part 5 or 7 of the Act, and the rules of natural justice did not apply. Furthermore, the court found that the Assistant Minister's decision to proceed without according natural justice or providing an opportunity for the applicant to make submissions was not unreasonable, as per the principles established in Minister for Immigration and Citizenship v Li. Consequently, the application for judicial review was dismissed.
The final orders of the court were that the application for judicial review dated 19 April 2018 be dismissed.
The court was required to decide whether the Assistant Minister erred in his understanding of the law and the legal consequences of his decision. Specifically, the court needed to determine if the Assistant Minister misunderstood the difference between assessing facts against the criteria for a protection visa and considering the risk of harm to the applicant if returned to his country of nationality. Additionally, the court needed to consider whether the Assistant Minister failed to appreciate that he could have provided natural justice in his decision-making process, and if such a failure amounted to a jurisdictional error.
The court found that the Assistant Minister's decision did not exhibit any jurisdictional error. The Assistant Minister had correctly exercised his power under s 501BA(2) of the Migration Act, considering both the national interest and the seriousness of the applicant's criminal conduct. The court noted that the Assistant Minister's decision was not reviewable under Part 5 or 7 of the Act, and the rules of natural justice did not apply. Furthermore, the court found that the Assistant Minister's decision to proceed without according natural justice or providing an opportunity for the applicant to make submissions was not unreasonable, as per the principles established in Minister for Immigration and Citizenship v Li. Consequently, the application for judicial review was dismissed.
The final orders of the court were that the application for judicial review dated 19 April 2018 be dismissed.
Orders
Orders of the court
1. The application for judicial review dated 19 April 2018 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
There are two grounds of judicial review both alleging jurisdictional error on the part of the Minister.The Facts Mr Ibrahim is approximately 33 years of age and he is a national of Nigeria. He has three children aged approximately 10 years, 7 years and 6 years respectively. He has a substantial criminal record. As at 17 July 2015, Mr Ibrahim was in custody for his criminal offending and a delegate of the Minister cancelled his visa as required by s 501(3A) of the Act. Section 501(5) provided that the rules of natural justice and the code of procedure set out in Subdivision AB of Division 3 of Part 2 of the Act did not apply to a decision under, inter alia, s 501(3A). The Minister gave Mr Ibrahim written notice of the decision, particulars of relevant information and an invitation to make representations as the Minister was required to do by s 501CA(3) of the Act. Mr Ibrahim made representations in accordance with the invitation and, on 25 August 2016, a delegate of the Minister decided to revoke the original (and mandatory) decision to cancel Mr Ibrahim’s visa. On 23 May 2017, the Assistant Minister set aside the delegate’s decision and cancelled Mr Ibrahim’s visa under s 501BA(2) of the Act. That decision was the subject of a successful judicial review application in this Court and, on 13 October 2017, the decision was quashed (Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] FCA 1218; (2017) 256 FCR 50 (Ibrahim (No 2))). The Assistant Minister then made the decision which is challenged in this proceeding.The Assistant Minister’s Decision The power under s 501BA(2) is available to the Minister personally where the decision to revoke the cancellation of a visa has been made by a delegate of the Minister or by the Administrative Appeals Tribunal. The rules of natural justice do not apply to a decision of the Minister under s 501BA(2) and such a decision is not reviewable under Part 5 or Part 7 of the Act. The Minister may exercise the power in s 501BA(2) to set aside, revoke and cancel the visa if the Minister is satisfied the person does not pass the character test because of the operation of provisions which are identified in s 501BA(2)(a) and the Minister is satisfied that the cancellation is in the national interest. The relevant provisions, in effect working backwards from s 501BA of the Act, are as follows:501BA Cancellation of visa—setting aside and substitution of non-adverse decision under section 501CA(1) This section applies if:(a) a delegate of the Minister; or(b) the Administrative Appeals Tribunal;makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.(2)Action by Minister—natural justice does not apply The Minister may set aside the original decision and cancel a visa that has been granted to the person if:(a)the Minister is satisfied that the person does not pass the character test because of the operation of:(i)paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or(ii) paragraph 501(6)(e); and(b)the Minister is satisfied that the cancellation is in the national interest.(3)The rules of natural justice do not apply to a decision under subsection (2).(4)Minister’s exercise of power The power under subsection (2) may only be exercised by the Minister personally.(5)Decision not reviewable under Part 5 or 7 A decision under subsection (2) is not reviewable under Part 5 or 7.Note: For notification of decisions under subsection (2), see section 501G.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.…(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.…501 Refusal or cancellation of visa on character grounds(3A) The Minister must cancel a visa that has been granted to a person if:(a)the Minister is satisfied that the person does not pass the character test because of the operation of:(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or(ii)paragraph (6)(e) (sexually based offences involving a child); and(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.…(4)The power under subsection (3) may only be exercised by the Minister personally.(5)The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).I also set out cl 866.225 in Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations) which deals with criteria to be satisfied at the time of decision in the case of an application for a protection visa, and cl 4001 in Schedule 4 of the Regulations which is referred to in cl 866.225:866.225 The applicant:(a) satisfies public interest criteria 4001 and 4003A; and(b)if the applicant had turned 18 at the time of application—satisfies public interest criterion 4019.4001 Either:(a)the person satisfies the Minister that the person passes the character test; or(b)the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or(c)the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or(d)the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The relevant provisions, in effect working backwards from s 501BA of the Act, are as follows:501BA Cancellation of visa—setting aside and substitution of non-adverse decision under section 501CA(1) This section applies if:(a) a delegate of the Minister; or(b) the Administrative Appeals Tribunal;makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.(2)Action by Minister—natural justice does not apply The Minister may set aside the original decision and cancel a visa that has been granted to the person if:(a)the Minister is satisfied that the person does not pass the character test because of the operation of:(i)paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or(ii) paragraph 501(6)(e); and(b)the Minister is satisfied that the cancellation is in the national interest.(3)The rules of natural justice do not apply to a decision under subsection (2).(4)Minister’s exercise of power The power under subsection (2) may only be exercised by the Minister personally.(5)Decision not reviewable under Part 5 or 7 A decision under subsection (2) is not reviewable under Part 5 or 7.Note: For notification of decisions under subsection (2), see section 501G.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.…(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.…501 Refusal or cancellation of visa on character grounds(3A) The Minister must cancel a visa that has been granted to a person if:(a)the Minister is satisfied that the person does not pass the character test because of the operation of:(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or(ii)paragraph (6)(e) (sexually based offences involving a child); and(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.…(4)The power under subsection (3) may only be exercised by the Minister personally.(5)The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).I also set out cl 866.225 in Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations) which deals with criteria to be satisfied at the time of decision in the case of an application for a protection visa, and cl 4001 in Schedule 4 of the Regulations which is referred to in cl 866.225:866.225 The applicant:(a) satisfies public interest criteria 4001 and 4003A; and(b)if the applicant had turned 18 at the time of application—satisfies public interest criterion 4019.4001 Either:(a)the person satisfies the Minister that the person passes the character test; or(b)the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or(c)the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or(d)the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.
Ratio Decidendi
Legal Principle Established
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