AFD21 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 15 September 2021
• Neutral Citation: [2021] FCAFC 167
• Date: 15 September 2021
• Court: Full Federal Court (Australia)

Federal Court of Australia

AFD21 v Minister for Home Affairs [2021] FCAFC 167

Appeal from:	AFD21 v Minister for Home Affairs [2021] FCA 4
File number(s):	VID 71 of 2021
Judgment of:	KENNY, KERR AND WHEELAHAN JJ
Date of judgment:	15 September 2021
Catchwords:	MIGRATION – appeal against dismissal of application for revocation of mandatory visa cancellation decision –whether Minister failed to engage with appellant’s representation that he would be killed if returned to Burundi – whether claim as to Australia’s non-refoulement obligations squarely raised – held: jurisdictional error on both related grounds
Legislation:	Migration Act 1958 (Cth)
Cases cited:	Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 557 AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205 Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301 Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 Allesch v Maunz [2000] HCA 40; 203 CLR 172 Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; 94 ALJR 897; 383 ALR 194 AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 Boensch v Pascoe (2019) 375 ALR 15 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 DGI19 v Minister for Home Affairs [2019] FCA 1867 DOB18 v Minister for Home Affairs [2019] FCAFC 63; 269 FCR 636 DQM18 v Minister for Home Affairs [2020] FFC 110; 278 FCR 529 EKC19 v Minister for Home Affairs [2019] FCA 1823 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 Hernandez v Minister for Home Affairs [2020] FCA 415 Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; 49 AAR 77 Minister for Home Affairs v Omar [2019] FCAFC 188 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 Sowa v Minister for Home Affairs [2019] FCAFC 111; 369 ALR 389 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 WKNZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	62
Date of hearing:	12 August 2021
Counsel for the Appellant:	Mr N Wood
Solicitor for the Appellant:	Asylum Seeker Resource Centre
Counsel for the Respondent:	Mr C Lenehan SC with Mr C Tran and Ms S Spottiswood
Solicitor for the Respondent:	Sparke Helmore Lawyers

ORDERS

		VID 71 of 2021
BETWEEN:	AFD21 Appellant
AND:	MINISTER FOR HOME AFFAIRS Respondent

order made by:	KENNY, KERR AND WHEELAHAN JJ
DATE OF ORDER:	15 September 2021

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by the primary judge on 22 January 2021 be set aside, and in their place, the following orders be made:

   1. The decision made by the respondent on 1 May 2018 under section 501CA(4) of the Migration Act 1958 (Cth) not to revoke an earlier decision of the respondent’s delegate under section 501(3A) to cancel the applicant’s Class AH Subclass 101 Child (permanent) visa (the delegate’s decision) be quashed.

   2. A writ of mandamus issue requiring the respondent to determine the applicant’s request for the revocation of the delegate’s earlier decision according to law.

   3. The respondent pay the applicant’s costs of the application.

3. The respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. The appellant is a citizen of Burundi, and was granted a Class AH Subclass 101 Child (permanent) visa on 8 December 2010 when he was 17 years of age. Subsequently, on 30 April 2015, the appellant’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth). The appellant appeals from a judgment of a judge of this Court, dismissing his application for judicial review of a decision of the Minister declining to revoke the cancellation of his visa under s 501CA(4) of that Act. Before turning to the primary judge’s reasons, and the grounds of appeal, we will set out the background to the matter.

Background

2. The cancellation of the appellant’s visa under s 501(3A) was mandatory, because a delegate of the Minister was satisfied that the appellant did not pass the character test under s 501(6)(a) and (7)(c) of the Act, and because the appellant was then serving a sentence of imprisonment on a full time basis. Material to the delegate’s decision was that on 6 May 2014 the appellant pleaded guilty to the offence of “unlawful act with intent to harm (endangering life, health or safety of any person)”, for which he was sentenced by the District Court of Western Australia to a term of imprisonment of 12 months, and was eligible for parole after 6 months. The appellant was 19 years of age at the time of this offending. The appellant’s parole was cancelled on 18 February 2015 for breach of a parole condition relating to the consumption of alcohol. At the time of the cancellation of his visa, the appellant also had convictions for a number of other offences for which he was fined, which it is unnecessary for present purposes to recount.

3. Subsequent to the cancellation of his visa, on 9 June 2017 the appellant was convicted of further offences, namely, taking part in a riot, possessing a weapon, threatening to cause harm, causing harm to a Commonwealth public official, and obstructing, hindering, intimidating, or resisting a Commonwealth public official. He was sentenced to concurrent terms of imprisonment for those offences, the longest of which was 12 months.

4. The Department notified the appellant of the cancellation of his visa by letter dated 29 May 2015. By that letter, the appellant was invited to make representations to the Minister about revocation of the mandatory decision to cancel his visa: see s 501CA(3)(b). In that respect, the letter included the following information –

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