AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judge: PERRY J
• Judgment Date: 24 December 2019
• Neutral Citation: [2019] FCA 2205
• Date: 24 December 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205

File number:	NSD 1089 of 2018
Judge:	PERRY J
Date of judgment:	24 December 2019
Date of publication of reasons:	7 January 2020
Catchwords:	MIGRATION – application for judicial review of the Minister’s decision under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke mandatory cancellation of the applicant’s Global Special Humanitarian visa under s 501(3A) of the Act – where Minister accepted applicant’s claims to have suffered torture and extreme suffering in the past in Sudan and consequential mental health issues – where Minister accepted Sudan remained a “conflict-affected third world country” – where Minister failed to engage in an active intellectual process with the applicant’s claims to fear serious harm and aggravated mental health impacts if returned to Sudan – Minister for Home Affairs v Omar [2019] FCAFC 188 followed – whether Minister failed to take into account that Direction 75 does not apply to decisions made by the Minister personally on a protection visa application in deferring consideration of non-refoulement obligations – whether Minister failed to take into account ss 197C and 198 of the Act – DOB18 v Minister for Home Affairs [2019] FCAFC 63 followed – whether Minister’s reliance on the result of applying Static-99R actuarial tool in assessing the applicant’s risk of re-offending was legally unreasonable despite accepting sentencing judge’s reservations – application allowed
Legislation:	Migration Act 1958 (Cth) ss 197C, 198, 501, 501CA
Cases cited:	Ali v Minister for Immigration and Border Protection [2018] FCA 650 BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 BKS18 v Minister for Home Affairs [2018] FCA 1731 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; (2017) 253 FCR 576 DOB18 v Minister for Home Affairs [2019] FCAFC 63 DYY18 v Minister for Home Affairs [2019] FCA 1901 FBW18 v Minister for Home Affairs [2019] FCA 1878 FRH18 v Minister for Home Affairs [2018] FCA 1769; (2018) 266 FCR 413 GBV18 v Minister for Home Affairs [2019] FCA 1132 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 364 ALR 423 Jahangir v Minister for Immigration and Border Protection [2014] FCA 218; (2014) 222 FCR 91 Minister for Home Affairs v Omar [2019] FCAFC 188 Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; (2018) 260 FCR 523 Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 Navoto v Minister for Home Affairs [2019] FCAFC 135 Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620; (2018) 261 FCR 385 Omar v Minister for Home Affairs [2019] FCA 279 Poroa v Minister for Immigration and Border Protection [2017] FCA 826; (2017) 252 FCR 505 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 Tickner v Chapman (1995) 57 FCR 451
Date of hearing:	30 January 2019
Date of last submissions:	11 December 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	98
Counsel for the Applicant:	Ms T Baw (pro bono)
Counsel for the Respondents:	Mr G Johnson
Solicitor for the Respondents:	HWL Ebsworth

ORDERS

		NSD 1089 of 2018
BETWEEN:	AIJ19 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent ; ASSISTANT MINISTER FOR HOME AFFAIRS Second Respondent

JUDGE:	PERRY J
DATE OF ORDER:	24 December 2019

THE COURT ORDERS THAT:

1. By consent, leave is granted to the applicant to rely upon the further amended originating application for review filed on 27 November 2019.

2. The decision given on 2 May 2018 by the second respondent is quashed.

3. Costs are reserved.

4. The parties are to file and serve draft minutes of order (agreed if possible) otherwise giving effect to the reasons to be published in the week of 6 January 2020 within 10 working days of publication of those reasons, together with any short submissions in support of the proposed orders.

5. In the event that the appropriate order as to costs is not agreed, the parties are to file and serve short submissions in support of their respective positions as to costs within 15 working days of publication of the reasons referred to in order 4 above.

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

REASONS FOR JUDGMENT

PERRY J:

1 INTRODUCTION	[1]
2 BACKGROUND	[12]
2.1 Relevant statutory provisions	[12]
2.2 The first decision by the Assistant Minister	[18]
2.3 The second decision by the Assistant Minister	[20]
3 CONSIDERATION	[35]
3.1 The issues	[35]
3.2 Alleged failure to take into account that Direction 75 would not apply to decisions made by the Minister personally on a protection visa application (Ground 1(a))	[37]
3.3 Alleged failure to engage intellectually with the applicant’s claims to fear harm if returned to Sudan, separately from any protection visa application (ground 1(c))	[54]
3.3.1 The decision in Omar (FCAFC): relevant principles	[54]
3.3.2 The parties’ submissions	[61]
3.3.3 Consideration and disposition of ground 1(c)	[62]
3.4 Alleged failure to take into account the operation of ss 197C and 198 of the Act (Ground 1(b))	[76]
3.5 Alleged legal unreasonableness (Ground 2)	[90]
4 CONCLUSION	[97]

1. INTRODUCTION

1. The applicant is a national of Sudan who arrived in Australia in late 2005 on a permanent Class XB (Subclass 202) Global Special Humanitarian visa (humanitarian visa). Before that time, he and his wife, together with their first two children, had spent five years in a United Nations refugee camp. The applicant’s wife resides in Australia and is an Australian citizen. They have been married for over 25 years. Together they have five children, three of whom are minors, with the youngest being under 10 years of age. All of the children hold Australian citizenship.

2. On 2 August 2016, the applicant’s humanitarian visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) upon the applicant being convicted of an offence and sentenced to 12 months’ imprisonment. The applicant has been in immigration detention since 3...