Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20

• Jurisdiction: Australia Federal only
• Judgment Date: 09 November 2021
• Neutral Citation: [2021] FCAFC 195
• Date: 09 November 2021
• Court: Full Federal Court (Australia)

Federal Court of Australia

Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195

Appeal from:	[2020] FCA 1855
File numbers:	NSD 47 of 2021 VID 13 of 2021
Judgment of:	ALLSOP CJ, KENNY, BESANKO, KERR AND CHARLESWORTH JJ
Date of judgment:	9 November 2021
Catchwords:	MIGRATION — appeal from orders made by Federal Court of Australia granting application for judicial review of decision of Acting Minister — where Administrative Appeals Tribunal made decision setting aside decision of delegate of Minister for Home Affairs to refuse to grant protection visa to respondent — where Acting Minister set aside decision of Tribunal under s 501A(2) of Migration Act 1958 (Cth) — where respondent was person in respect of whom Australia had protection obligations with country of reference being Afghanistan — where consequences of refusal of visa included removal from Australia — where no other country respondent could be removed to such that removal would be to Afghanistan where respondent faced risk of harm in breach of Australia’s international non-refoulement obligations — where Acting Minister did not refer to implications of breach of international non-refoulement obligations in consideration of whether refusal of visa in national interest under s 501A(2)(e) — where Acting Minister referred to Australia’s international non-refoulement obligations in addressing discretion to refuse visa upon satisfaction of matters in s 501A(2)(c), (d) and (e) — whether Acting Minister deferred active consideration of Australia’s international non-refoulement obligations to assessment of discretion — whether Acting Minister erred in not giving active consideration to implications of breach of Australia’s international non-refoulement obligations as part of consideration of national interest — appeal dismissed ; MIGRATION — application for judicial review of decision of Minister for Home Affairs — order that two grounds of application be heard separately from any other questions by a Full Court — where Administrative Appeals Tribunal made decision setting aside decision of delegate of Minister to refuse to grant protection visa to applicant — where Minister set aside decision of Tribunal under s 501A(2) of Migration Act 1958 (Cth) — where applicant was person in respect of whom Australia had protection obligations with country of reference being Afghanistan — where consequences of refusal of visa included removal from Australia — where no other country applicant could be removed to such that removal would be to Afghanistan in breach of Australia’s international non-refoulement obligations — where Minister did not refer to implications of breach of international non-refoulement obligations in consideration of whether refusal of visa in national interest under s 501A(2)(e) — where Minister referred to Australia’s international non-refoulement obligations in addressing discretion to refuse visa upon satisfaction of matters in s 501A(2)(c), (d) and (e) — whether Minister erred in approaching task on basis that s 501A(2) conferred discretion to refuse visa upon satisfaction of each of matters in s 501A(2)(c), (d) and (e) — whether Minister deferred active consideration of Australia’s international non-refoulement obligations to assessment of discretion — whether Minister erred in not considering implications of breach of Australia’s international non-refoulement obligations as part of consideration of national interest — jurisdictional error established
Legislation:	Acts Interpretation Act 1901 (Cth) ss 25D, 33 Broadcasting Services Amendment Act 2000 (Cth) s 121FD Clean Energy Act 2011 (Cth) s 3 Federal Court of Australia Act 1976 (Cth) s 20 Foreign Antitrust Judgments (Restriction of Enforcement) Act 1979 (Cth) s 3 Migration Act 1958 (Cth) ss 46A, 48A, 189, 195A, 197AB, 197C, 198, 501, 501A, 501BA, 501CA, 501E, 501G National Environment Protection Measures (Implementation) Act 1998 (Cth) s 5 Petroleum (Submerged Lands) Act 1967 (Cth) Structural Adjustment (Loan Guarantees) Act 1974 (Cth) s 3 Trade Practices Amendment (International Liner Cargo Shipping) Act 2000 (Cth) Division 12A Water Act 2007 (Cth) s 3 ; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) Art 3 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) Art 33 Draft Articles on Responsibility of States for Internationally Wrongful Acts, commended by the General Assembly on 28 January 2002, A/RES/56/83 and 8 January 2008, A/RES/62/61 Arts 28, 30, 31, 35, 36, 37 and 49 Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Arts 2, 6 and 7 Protocol Relating to the Status of Refugees, 606 UNTS 267 (entered into force 4 October 1967) Statute of the International Court of Justice Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) Art 26
Cases cited:	Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2020] FCAFC 109; (2020) 278 FCR 627 Applicant M 117 of 2007 v Minister for Immigration and Citizenship[2008] FCA 1838 Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 94 ALJR 897 Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 BFM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 312 Brisbane City Council v Amos [2019] HCA 27; (2019) 266 CLR 593 Buck v Bavone[1976] HCA 24; (1976) 135 CLR 110 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 Commonwealth v Tasmania (The Tasmanian Dam Case)[1983] HCA 21; (1983) 158 CLR 1 CZW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2020] FCA 1380 Director of Public Prosecutions Reference No 1 of 2019[2021] HCA 26; (2021) 95 ALJR 741 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 FTZK v Minister for Immigration and Border Protection [2014] HCA 26;(2014) 88 ALJR 754 Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; (2012) 202 FCR 417 Graham v Minister for Immigration and Border Protection [2017] HCA 33;(2017) 263 CLR 1 Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 Ibrahim v Minister for Home Affairs [2019] FCAFC 89; (2019) 270 FCR 12 Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; (2002) 188 FCR 326 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 Minister for Immigration and Citizenship v Li [2013] HCA 18;(2013) 249 CLR 332 Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 Minister for Immigration and Citizenship v SZMDS[2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[2004] HCA 32; (2004) 78 ALJR 992 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19[2021] FCAFC 153 Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 Nuclear...