Omar v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Omar v Minister for Home Affairs [2019] FCA 279

File number: VID 387 of 2018
Judge: MORTIMER J
Date of judgment: 7 March 2019
Catchwords: MIGRATION – application for judicial review of exercise of power by Assistant Minister under s 501CA(4) of the Migration Act 1958 (Cth) – where Assistant Minister decided not to revoke cancellation of applicant’s visa - where applicant made representations to Assistant Minister about engagement of Australia’s non-refoulement obligations – where Assistant Minister considered it unnecessary to determine whether non-refoulement obligations owed in circumstances where applicant could make a valid application for a protection visa – whether Assistant Minister failed to perform statutory task – consideration of content of non-refoulement obligations at international law and in criteria for grant of a protection visa under the Migration Act 1958 (Cth) – consideration of Direction 75 - discussion of BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 – decision of Assistant Minister set aside
Legislation:

Migration Act 1958 (Cth) ss 5H, 5J, 36(1C), 36(2), 36(2C), 65, 197C, 198, 499, 501(3A), 501CA

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

Migration Regulations 1994 (Cth) Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)

Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Cases cited:

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

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

Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 250 FCR 209

DMH16 v Minister for Immigration and Border Protection [2017] FCA 448

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389

Goundar v Minister for Immigration and Border Protection [2016] FCA 1203

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

Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68

Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198

Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; 231 CLR 1

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1

NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; 222 CLR 161

One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; 356 ALR 535

Patto v Minister for Immigration and Multicultural Affairs [2000] FCA 1554; 106 FCR 119

Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1

Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319

Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144

SZATVv Minister…

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Details
Case
[2019] FCA 279
Decision Date

CaseChat Overview and Summary

The applicant, a non-citizen in Australia, sought judicial review of the Assistant Minister’s decision not to revoke the cancellation of his visa under section 501CA(4) of the Migration Act 1958 (Cth). The Assistant Minister considered the applicant’s non-refoulement obligations but did not determine whether such obligations were owed because the applicant could make a valid application for a protection visa. The applicant argued that the Assistant Minister failed to perform the statutory task by not considering the non-refoulement obligations owed to him.

The court was required to determine whether the Assistant Minister failed to perform the statutory task by not considering the non-refoulement obligations owed to the applicant. The court had to consider the content of non-refoulement obligations at international law and in the criteria for the grant of a protection visa under the Migration Act 1958 (Cth), as well as Direction 75. The court also had to consider the case of BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, which held that neither a Minister nor an Assistant Minister are bound to comply with directions given under section 499(1) of the Migration Act.

The court found that the Assistant Minister failed to perform the statutory task by not considering the non-refoulement obligations owed to the applicant. The court held that engagement of Australia’s non-refoulement obligations may be a consequence or outcome of a successful conclusion to the protection visa process, through the grant of a visa. However, if no visa is granted, there is no protection from non-refoulement unless that occurs in the exercise of some other power, and in that context the imperative language in section 197C would need to be considered. The court held that the Assistant Minister’s reliance on the theoretical protection visa process was irrational because it did not consider the non-refoulement obligations owed to the applicant. The court set aside the decision of the Assistant Minister and ordered that the respondent pay the applicant’s costs.

Orders

Orders of the court

1. The decision of the Assistant Minister made on 27 February 2018 not to revoke the decision of a delegate of the respondent under s 501(3A) of the Migration Act 1958 (Cth) to cancel the applicant’s Class BC Subclass 100 Partner (Migrant) visa be set aside.

2. The respondent pay the applicant’s costs, to be fixed in a lump sum.

3. If the parties agree on a lump sum figure in relation to the applicant’s costs, they are to file a joint minute of proposed orders on or before 4 pm on 21 March 2019.

4. In the absence of any joint minute of proposed orders, pursuant to paragraph 3 of these orders:

(a) on or before 4 pm on 28 March 2019, the applicant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016.

(b) on or before 4 pm on 4 April 2019, the respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

5. In the absence of any agreement having been reached on or before 11 April 2019, the matter of an appropriate lump sum figure for the applicant’s costs be referred to a Registrar for determination.

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

In his submissions, the applicant relied on what he was told in the letter sent by the Department on 18 July 2016 about how to seek revocation of the cancellation decision. Relevantly, that letter stated: Opportunity to seek revocation of the cancellation decisionWhile your visa has been cancelled and you no longer hold a visa, you have an opportunity to make representations about revoking the decision to cancel your visa.You are hereby invited to make representations to the Minister about revoking the decision to cancel your visa. The representations must be made in accordance with the instructions outlined below, under the headings entitled “How to make representations about revocation of the decision to cancel your visa” and “Timeframe to make representations about revocation”.The decision to cancel your visa may be revoked by the Minister under s501CA(4) of the Act if you make representations in accordance with the specified instructions and the Minister is satisfied that:• you pass the character test (as defined by s501 of the Act); or• there is another reason why the decision to cancel you r visa should be revoked.The full text of s501CA of the Act is also included in Attachment 1.How to make representations about revocation of the decision to cancel your visaIf you decide to make representations about the revocation of the decision to cancel your visa, you can write to us using the attached Revocation Request Form.Under s499 of the Act which permits the Minister to issue written directions about the exercise of powers under the Act, the Minister has issued Direction 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which identifies issues that are relevant to the revocation consideration. A copy of Direction 65 is enclosed for your information. You should address each paragraph in PART C of the Direction that is relevant to your circumstances.Please note that if the decision-maker who makes the decision regarding whether or not to revoke the decision to cancel your visa is a delegate of the Minister, they must follow Direction 65. If, however, the Minister makes a revocation decision personally, he or she is not bound by Direction 65, although Direction 65 provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the decision to cancel your visa. As the Minister noted in his written submissions, while s 499(2A) of the Migration Act provides that “[a] person or body must comply with a direction under subsection (1)”, a Full Court of this Court has held that neither a Minister nor an Assistant Minister themselves are bound to comply with directions given under that provision: Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 250 FCR 209, [78]-[79]. This is the legal position reflected in the terms of the letter to the applicant. In his written submissions, the applicant emphasised certain parts of Direction 65, to which the letter from the Department referred:14.1 International non-refoulement obligations(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.(2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48Bof the Act refer).(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of oriqin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.(Original emphasis.)

Ratio Decidendi

Legal Principle Established

Engagement of Australia’s non-refoulement obligations may be a consequence or outcome of a successful conclusion to the protection visa process, through the grant of a visa. That is one way in which Australia’s obligations under Art 33 and its equivalents are fulfilled. If no visa is granted, there is no protection from non-refoulement unless that occurs in the exercise of some other power, and in that context the imperative language in s 197C would need to be considered. However, as the applicant submitted, these matters are in the realm of speculation and, just as this Court should not engage in speculation, neither should the repository of the power under s 501CA(4).The irrationality of the Assistant Minister’s reliance on the theoretical protection visa process The Assistant Minister found (at [97] of his reasons) that the applicant posed an “unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed” all other considerations which may have favoured revocation – of which there were many, as the Assistant Minister’s reasons appear to acknowledge. The considerations which may have favoured revocation included the following matters (at [32]-[37] of the Assistant Minister’s reasons):I note that Mr OMAR has a confirmed diagnosis of schizophrenia and has been assessed to have an intellectual disability with a cognitive functioning of intelligence in the extremely low range.I take into consideration the submission provided on behalf of Mr OMAR which states that the treatment of persons with mental illness in Somalia are subjected to systemic and severe discrimination, arguably amounting to cruel, inhumane and degrading treatment. Furthermore, it is stated that many Somalian nationals with mental illness are contained with chains and this is a locally accepted treatment in mental health facilities as it is seen as alternative medication.I note the submissions include that returning Mr OMAR to Somalia would offend Australia’s obligations under the Convention on the Rights of Persons with Disabilities.I acknowledge that Mr OMAR’s medication has predominantly been administered through a monthly depot injection. I further acknowledge the submission which states that it is widely perceived that no governmental or institutional infrastructure exists in Somalia which is capable of supporting the development or expansion of mental health care. Additionally, the hospitals do not purchase the drugs and they are usually provided on an irregular basis by World Health Organisation (WHO) and or private donations. I find that Mr OMAR’s return to Somalia would compromise his access to required medication and appropriate medical treatment, care and support given his complex mental health issues. I note that Mr OMAR has been absent from Somalia since the age of eight as he spent a period of six years in a refugee camp in Kenya before arriving in Australia. I accept that he has little memory of Somalia, no social or family supports and an impaired cognitive capacity that would not facilitate establishing such networks by himself. I find that this will impact his ability to access a basic income, accommodation and other necessities.Taking into account all of the above considerations, I find that returning to Somalia would cause Mr OMAR significant difficulties given his various complex health issues, medication requirements, his fears of return due to the treatment of mentally ill persons in Somalia and other concerns, combined also with the absence of any support network and appropriate medical care or other support services in Somalia.