AEM20 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: KATZMANN J
• Judgment Date: 12 May 2020
• Neutral Citation: [2020] FCA 623
• Court: Federal Court
• Date: 12 May 2020

FEDERAL COURT OF AUSTRALIA

AEM20 v Minister for Home Affairs [2020] FCA 623

File number:	NSD 22 of 2020
Judge:	KATZMANN J
Date of judgment:	12 May 2020
Catchwords:	MIGRATION — review of decision made by Minister personally to refuse to grant a Safe Haven Enterprise visa under s 501(6)(ba) of Migration Act 1958 (Cth) — where applicant volunteered information to Department of assistance provided to people smuggler in Indonesia in exchange for discounted passage to Australia — where Departmental reviewing officer determined he satisfied criteria for protection visa and Australian Federal Police investigated his conduct in Indonesia and he was not prosecuted — where Minister said he was satisfied applicant did not pass the character test because he reasonably suspected he had been involved in conduct constituting an offence under one or more of ss 233A to 234A (people smuggling) although applicant had not been convicted or charged with any such offence — where impressive evidence of good character presented to Minister — whether Minister could lawfully form a reasonable suspicion that applicant had been involved in conduct constituting an offence under ss 233A to 234A if the conduct did not constitute an offence at time of suspected involvement — whether Minister committed jurisdictional error by failing to identify in which of those seven offences he suspected the applicant to have been involved — whether Minister failed to consider applicant’s additional protection claims according to law — where Minister determined that applicant represented an unacceptable risk to the Australian community, whether Minister’s conclusion that in order to meet Australia’s non‑refoulement obligations he could exercise his personal non‑compellable power to grant applicant a visa in the public interest under s 195A was not properly considered or legally unreasonable — whether Minister’s findings that risk of applicant engaging in other serious conduct could not be ruled out and that he represented an unacceptable risk to the Australian community were legally unreasonable — whether Minister’s decision beyond power in any event as not open to him to refuse to grant a protection visa under s 501(1) since commencement of Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth).
Legislation:	Acts Interpretation Act 1901 (Cth) s 25D Criminal Code Act 1995 (Cth) s 9.2 Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 501(1), 501(6)(ba) Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) Sch 1, item 10 ; Explanatory Memorandum, Anti-People Smuggling and Other Measures Bill 2010 (Cth)
Cases cited:	Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 Attorney-General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557 Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317 BAL19 v Minister for Home Affairs [2019] FCA 2189 BFW20 by his Litigation Representative BFW20A v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 562 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 Chamoun v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Coco v The Queen (1994) 179 CLR 427 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; 197 ALR 389 Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 L’Offıce Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486 Maxwell v Murphy (1957) 96 CLR 261 Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67; 309 ALD 67 Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Omar v Minister for Home Affairs [2019] FCA 279 Plaintiff M70 v Minister for Immigration and Citizenship (2011) 244 CLR 144 Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Re Bolton; ex parte Beane (1987) 162 CLR 514 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407; 74 ALJR 405; 58 ALD 609 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 959 ; AM Gleeson QC, “The meaning of legislation: Context, purpose and respect for fundamental rights” (2009) 20 PLR 26
Date of hearing:	24 April 2020
Date of last submissions:	8 May 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	140
Counsel for the Applicant:	Mr L Karp
Solicitor for the Applicant:	Immigration Advice and Rights Centre
Counsel for the Respondent:	Mr G Johnson
Solicitor for the Respondent:	Australian Government Solicitor

Table of Corrections:
22 March 2021	In Legislation on the cover page and at paragraph 40, “Criminal Code 1995 (Cth)” has been replaced with “Criminal Code Act 1995 (Cth)”.
22 March 2021	In Cases cited on the cover page and at paragraph 76, “Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 214 CLR 496” should be replaced with “Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; 197 ALR 389”.
22 March 2021	In paragraph 115 the first sentence should begin “The Minister contended that”.

ORDERS

		NSD 22 of 2020
BETWEEN:	AEM20 Applicant

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