AHZ21 v Minister for Immigration, Citizenship and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 29 July 2022
• Neutral Citation: [2022] FCA 884
• Date: 29 July 2022
• Court: Federal Court

Federal Court of Australia

AHZ21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 884

File number(s):	NSD 77 of 2021
Judgment of:	FARRELL J
Date of judgment:	29 July 2022
Catchwords:	MIGRATION – cancellation of visa on character grounds where substantial criminal record – request for revocation of cancellation decision under s 501CA of the Migration Act 1958 (Cth) – decision by Assistant Minister not to revoke cancellation decision – application for extension of time to seek judicial review of Assistant Minister’s decision – where delay in making application is approximately four years – where respondent opposes extension of time – whether proposed ground has substantial merit – whether extension is necessary in the interests of the administration of justice – where Assistant Minister only considered applicant’s claim to fear harm in Iraq as a war zone in the context of international non-refoulement obligations – where applicant’s claim to fear harm in Iraq as a war zone was a central element of applicant’s claims to impediments if removed from Australia – application for extension of time granted – Assistant Minister’s decision set aside – cancellation decision remitted to Minister for determination according to law
Legislation:	Migration Act 1958 (Cth) ss 5H, 36, 476A, 477A, 501, 501CA
Cases cited:	ADH17 v Minister for Immigration and Border Protection [2020] FCA 53 AFD21 v Minister for Home Affairs (2021) 393 ALR 398 Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627 Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 383 ALR 194 AXT19 v Minister for Home Affairs [2020] FCAFC 32 BBK15 v Minister for Immigration and Border Protection [2016] FCA 680; (2016) 241 FCR 150 BCX16 v Minister for Immigration and Border Protection [2019] FCA 465 BQQ15 v Minister for Home Affairs [2019] FCAFC 218 DCC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 395 DOB18 v Minister for Home Affairs (2019) 269 FCR 636 Ezegbe v Minister for Immigration and Border Protection (2019) 164 ALD 139 GBV18 v Minister for Home Affairs (2020) 274 FCR 202 Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; (2016) 160 ALD 123 Hernandez v Minister for Home Affairs [2020] FCA 415 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 Minister for Home Affairs v Omar (2019) 272 FCR 589 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	64
Date of last submissions:	22 July 2022
Date of hearing:	30 April 2021
Counsel for the Applicant:	Mr O Jones
Solicitor for the Applicant:	Adrian Joel & Co Solicitors
Counsel for the Respondent:	Mr P Knowles
Solicitor for the Respondent:	Sparke Helmore

ORDERS

		NSD 77 of 2021
BETWEEN:	AHZ21 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS Respondent

order made by:	FARRELL J
DATE OF ORDER:	29 July 2022

THE COURT ORDERS THAT:

1. The name of the respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2. The application is allowed.

3. Time in which to file an application for judicial review of the decision made by the Assistant Minister for Immigration and Border Protection on 28 March 2017 is extended pursuant to s 477A(2) of the Migration Act 1958 (Cth) to the date of this order.

4. The draft originating application attached to the affidavit of Adrian Phillip Joel affirmed on 2 February 2021 be taken as filed on the date of this order.

5. The decision of the Assistant Minister for Immigration and Border Protection made under s 501CA(4) of the Migration Act 1958 (Cth) dated 28 March 2017 be set aside.

6. The applicant’s application for revocation of the decision made on 19 May 2015 under s 501(3A) of the Migration Act 1958 (Cth) be remitted to the respondent for determination according to law.

7. The respondent pay the applicant’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J:

Introduction

1. This is an application for an extension of time for the applicant to make an application for judicial review of a decision made by the then Assistant Minister for Immigration and Border Protection under s 501CA(4) of the Migration Act 1958 (Cth) on 28 March 2017. The application was made approximately three years and nine months out of time. The application is opposed by the respondent.

2. I will sometimes, and without intending disrespect, refer to the applicant as AHZ21 in these reasons.

Background

3. AHZ21 was born in Iraq and is ethnically Kurdish. Prior to his arrival in Australia in 2003, he was granted a Class XB Subclass 202 Global Special Humanitarian (permanent) visa.

4. On 19 May 2015, a delegate of the responsible Minister made a decision to cancel the applicant’s visa (cancellation decision). The delegate was required to make the cancellation decision under s 501(3A) of the Migration Act because:

1. The applicant failed the “character test” (having regard to the terms of s 501(6)(a) and (7)(c) of the Migration Act) because, on 1 May 2009, he was convicted of sexual intercourse without consent and sentenced to a term of imprisonment of nine years and four months; and

2. He was then serving a sentence of imprisonment on a full-time basis in a custodial institution for a criminal offence against the law of a State.

5. The Assistant Minister had power to revoke the cancellation decision under s 501CA(4) if:

1. A person made representations seeking revocation of the cancellation decision in accordance with an invitation made under s 501CA(3); and

2. The Assistant Minister was satisfied that:

1. the person passes the character test (as defined in s 501); or

2. there is another reason why the cancellation decision should be revoked.

Applicant’s representations

6. AHZ21 made representations requesting revocation of the cancellation decision as follows:

1. On 29 May 2015, AHZ21 completed a form requesting revocation of the cancellation decision and said “Please I cannot go to Iraq, its a war zone and I do not want to be mixed up with war”. In the related “personal details form”, AHZ21 said (as written): “If I return to Iraq, my fears...