Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judge: KERR J
• Judgment Date: 29 April 2020
• Neutral Citation: [2020] FCA 557
• Date: 29 April 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 557

File number:	VID 730 of 2019
Judge:	KERR J
Date of judgment:	29 April 2020
Catchwords:	MIGRATION – visa cancellation on character grounds – application for review of decision by Minister not to revoke visa cancellation pursuant to s 501CA(4) of the Migration Act 1958 (Cth) – whether failure to give meaningful consideration to substantial and clearly articulated representations concerning risk of harm if returned to Somalia, including risk that applicant would perish soon after arrival – Minister “noted” and “had regard” to various representations – Minister accepted that applicant would suffer “hardship” if returned – consideration of Minister for Home Affairs v Omar [2019] FCAFC 188 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 – relevance of failure to supply corroborative country information – jurisdictional error established – application upheld ; MIGRATION – whether Minister erred in failing to consider applicant’s representations regarding non-refoulement obligations on the assumption that they would be addressed in relation to a future protection visa application because assessing those obligations is a qualitatively different task under ss 501CA and 65 of the Migration Act 1958 (Cth) – consideration of Omar v Minister for Home Affairs [2019] FCA 279, DOB18 v Minister for Home Affairs [2019] FCAFC 63 and related authorities – case law unsettled – DGI19 v Minister for Home Affairs [2019] FCA 1867 not plainly wrong in concluding Omar v Minister for Home Affairs [2019] FCA 279 remains good law – jurisdictional error established ; MIGRATION – whether Minister erred in failing to consider applicant’s representations regarding non-refoulement obligations on the assumption that they would be addressed in relation to a future protection visa application because those obligations have a materially different content under ss 501CA and 65 of the Migration Act 1958 (Cth) – application of Ibrahim v Minister for Home Affairs [2019] FCAFC 89 – any error not material as any differences between international obligations and statutory criteria not relevant to Minister’s decision – jurisdictional error not established ; MIGRATION – whether Minister’s conclusion that risk of harm to Australian community outweighed other considerations legally unreasonable – jurisdictional error established in view of other errors made in reasoning underpinning that conclusion
Legislation:	Migration Act 1958 (Cth) ss 36, 501(3A), 501(7), 501(12), 501BA, 501CA(4)
Cases cited:	AIJ19 v Minister for Immigration [2019] FCA 2205 Ali v Minister for Home Affairs [2019] FCA 1900 Assistant Minister for Immigration v Splendido [2019] FCAFC 132 AXT19 v Minister for Home Affairs [2020] FCAFC 32 DCC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 395 DGI19 v Minister for Home Affairs [2019] FCA 1867 DOB18 v Minister for Home Affairs [2019] FCAFC 63 EVK18 v Minister for Home Affairs [2020] FCAFC 49 Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216 FBW18 v Minister for Home Affairs [2019] FCA 1878 FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 Hands v Minister for Immigration [2018] FCAFC 225; 267 FCR 628 Hernandez v Minister for Home Affairs [2020] FCA 415 Ibrahim v Minister for Home Affairs [2019] FCAFC 89 Martin and Minister for Immigration and Border Protection (Migration) [2018] AATA 1289 Minster for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 591 Minister for Home Affairs v Omar [2019] FCAFC 188 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 Omar v Minister for Home Affairs [2019] FCA 279 Tran v Minister for Immigration and Border Protection [2019] FCAFC 126 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593
Date of hearing:	17 April 2020
Date of last submissions:	9 April 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	171
Counsel for the Applicant:	Ms N Blok
Solicitor for the Applicant:	Kerdo Legal
Counsel for the Respondent:	Mr G Hill
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		VID 730 of 2019
BETWEEN:	MOHAMED ABDIRASHID AHMED Applicant
AND:	MINISTER FOR IMMIGRATION, CITIENSHIP, AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	KERR J
DATE OF ORDER:	29 April 2020

THE COURT ORDERS THAT:

1. The decision of the Respondent made on 20 May 2019 not to revoke the cancellation of the Applicant’s visa be set aside.

2. The Respondent determine the Applicant’s application for revocation of the decision to cancel his visa pursuant to s 501CA of the Migration Act 1958 (Cth) according to law.

3. The Respondent pay the Applicant’s costs of the proceeding, as agreed or assessed.

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

REASONS FOR JUDGMENT

KERR J:

Background

1. The Applicant is a citizen of Somalia. He arrived in Australia on 24 August 2009. He was then aged 12. He was the holder of a Class XB Subclass 200 (Refugee) Visa (Refugee Visa).

2. On 28 August 2015, the Applicant appeared in the Children’s Court of Queensland. He entered pleas of guilty to (a) unlawful stalking, (b) using a carriage service to menace, harass or cause offence, and (c) a rape of a 10 year old boy he had committed on 2 March 2012 when aged 14. No conviction was recorded in respect of any of those counts. No action was taken in respect of the carriage service offence....