QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Case [2022] FCAFC 82


FEDERAL COURT OF AUSTRALIA

QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 82

Appeal from:

QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
File number: VID 739 of 2021
Judgment of: SC DERRINGTON, O'BRYAN AND ABRAHAM JJ
Date of judgment: 16 May 2022
Catchwords: MIGRATION Ð appeal from Federal Court of Australia dismissing application for judicial review of decision of Administrative Appeals Tribunal to affirm delegateÕs decision not to revoke mandatory cancellation of visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) Ð whether Tribunal failed to actively consider appellantÕs representations Ð whether Tribunal failed to fully consider real risk of harm in relation to claim of generalised violence and deteriorating living conditions in Iraq Ð whether Tribunal relied on South Australian Police (SAPOL) records of uncharged criminal conduct Ð whether prejudicial nature of the records could be cured by procedural fairness
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 33

Migration Act 1958 (Cth) ss 501, 501CA

Cases cited:

Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7; 255 CLR 352

Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172

Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352

CVN17 v Minister for Immigration and Border Protection [2019] FCA 13; 163 ALD 101

Guclukol v Minister for Home Affairs [2020] FCAFC 148; 279 FCR 611

Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589

Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

Papakosmas v R [1999] HCA 37; 196 CLR 297

Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 41
Date of hearing: 9 May 2022
Counsel for the Appellant: Mr J Tito
Solicitor for the Appellant: Victoria Legal Aid
Counsel for the First Respondent: Ms F Gordon
Solicitor for the First Respondent: Australian Government Solicitor

ORDERS

VID 739 of 2021
BETWEEN:

QDQY

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

SC DERRINGTON, OÕBRYAN AND ABRAHAM JJ

DATE OF ORDER:

16 MAY 2022

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondentÕs costs, to be assessed by a Registrar if not agreed.

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


REASONS FOR JUDGMENT

THE COURT

  1. It is beyond doubt that the task of the Administrative Appeals Tribunal, when reviewing a decision not to revoke the mandatory cancellation of a non-citizenÕs visa on character grounds, is to give active intellectual consideration to representations that were clearly made by an applicant: Carrascalao v Minister…

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AGLC
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 82
Case
[2022] FCAFC 82
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia was asked to review an appeal against the decision of the Administrative Appeals Tribunal (AAT) to affirm a delegate's decision not to revoke the mandatory cancellation of the appellant's visa under section 501(3A) of the Migration Act 1958 (Cth). The appellant, QDQY, sought to have his visa revoked on the basis of a range of factors, including generalised violence and deteriorating living conditions in Iraq. The primary judge dismissed the appeal and the appellant sought leave to appeal to the Full Court. The legal issues before the court were whether the AAT failed to actively consider the appellant's representations, whether the AAT failed to fully consider the real risk of harm in relation to the appellant's claim of generalised violence and deteriorating living conditions in Iraq, and whether the AAT relied on South Australian Police (SAPOL) records of uncharged criminal conduct.

The court found that the AAT did not fail to actively consider the appellant's representations. The court found that the AAT did consider the appellant's claims of generalised violence and deteriorating living conditions in Iraq, but found that the appellant's claims were not sufficient to establish a real risk of harm. The court also found that the AAT did not rely on SAPOL records of uncharged criminal conduct in making its decision. Rather, the AAT considered the appellant's criminal history as part of its overall assessment of the appellant's character and conduct. The court found that any error in the AAT's consideration of the appellant's criminal history did not affect the outcome of the case.

The appeal was dismissed and the appellant was ordered to pay the respondent's costs. The Full Court found that the AAT's decision was not legally flawed and that there was no basis for the appellant to be granted a visa. The court found that the appellant's criminal history and lack of ties to Australia were significant factors in the AAT's decision not to revoke the visa cancellation. The court also found that the appellant's claims of generalised violence and deteriorating living conditions in Iraq were not sufficient to establish a real risk of harm. The court concluded that the AAT's decision was reasonable and that there was no error of law.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondentÕs costs, to be assessed by a Registrar 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

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Ratio Decidendi

Legal Principle Established

It is similarly uncontroversial that there is no general prohibition on the Tribunal finding that a person has engaged in conduct that constitutes a criminal offence as a step on the road to exercising a statutory power, such as that contained in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth): Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7; 255 CLR 352 at [33]. The appellant contends that the primary judge should have found that the Tribunal failed to engage in an active intellectual process with respect to significant and clearly articulated representations. Specifically, the appellant contends that his claim to fear a risk of harm in Iraq due to the lack of safe drinking water, acute electricity shortages, government corruption and the lack of employments opportunities were simply not considered by the Tribunal (Ground 1). Further, the appellant contends that the primary judge should have found that the TribunalÕs reliance on uncorroborated and untested evidence in forming a view about his risk of harm to the community was legally unreasonable. It is said that the Tribunal relied on uncharged allegations referred to in a summary of offending, that contained reference to South Australian Police (SAPOL) Records. The appellantÕs specific complaint, at least as articulated in the notice of appeal, is that the Tribunal unfairly and unreasonably formed a view about an unacceptable risk to the community on the basis of hearsay evidence that had not been tested or corroborated (Ground 2). As is discussed below, the character of that complaint shifted during oral argument. For the reasons that follow, the appeal must be dismissed. Procedural history As appears from the Reasons of the primary judge, the appellantÕs Class BB Subclass 155 Resident Return visa was cancelled by the Minister on 14 December 2016 following the appellantÕs initial conviction for intentionally causing harm and his subsequent conviction for cultivating a commercial quantity of a controlled plant. The appellant was sentenced to a cumulative period of imprisonment of four years and four months, with a non-parole period of two years and three months, triggering the mandatory cancellation of his visa pursuant to s 501(3A) by virtue of his substantial Ôcriminal recordÕ (s 501(6)(a)) within the meaning of s 501(7)(c) of the Migration Act. The appellant made representations in support of his application for revocation of that decision on 4 January 2017. That application was refused by the Minister on 24 February 2017. The appellantÕs subsequent application to the Tribunal for review of that decision was refused on 19 May 2017. On 12 September 2018, the decision of the Tribunal was quashed (by consent) by a single judge of this Court and the matter was remitted to the Tribunal. On 13 September 2018, prior to the review by the reconstituted Tribunal, the appellant unsuccessfully applied for an Onshore Protection visa (Class XA, subclass 866). The Migration and Refugee Division of the Tribunal affirmed the decision to refuse the appellant a protection visa on 11 September 2019.