Ali v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 29 June 2020
• Neutral Citation: [2020] FCAFC 109
• Date: 29 June 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Ali v Minister for Home Affairs [2020] FCAFC 109

Appeal from:	Ali v Minister for Home Affairs[2019] FCA 1900
File number:	VID 1348 of 2019
Judges:	COLLIER, REEVES AND DERRINGTON JJ
Date of judgment:	29 June 2020
Catchwords:	MIGRATION – appeal from the Federal Court of Australia dismissing an application for judicial review of a decision made by the Assistant Minister – jurisdictional fact error – where the Assistant Minister did not revoke the mandatory cancellation of the appellant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) – where the appellant made representations to the Assistant Minister upon the Assistant Minister’s invitation under s 501CA(3)(b) – where the appellant failed the character test – where the appellant raised Australia’s non-refoulement obligations in respect of him as “another reason” why the decision to cancel his visa should be revoked under s 501CA(4)(b)(ii) – where the Assistant Minister considered it was “unnecessary” to determine whether non-refoulement obligations were owed in respect of the appellant on the basis those obligations would be fully considered if the appellant applied for a protection visa – whether the primary judge erred in not finding that the Assistant Minister erred in deferring consideration of Australia’s non-refoulement obligations in respect of the appellant – whether the primary judge erred in not finding that the Assistant Minister erred in assuming Australia’s non-refoulement obligations would be considered in the same way in any subsequent protection visa application as under s 501CA(4) – whether the primary judge erred in not finding that the Assistant Minister erred in assuming Australia’s non-refoulement obligations would be fully considered on any subsequent protection visa application – appeal allowed
Legislation:	Migration Act 1958 (Cth) ss 5, 5H, 5J, 36, 65, 499, 501, 501CA(4) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 art 33(1) (entered into force 22 April 1954) International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, opened for signature 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991)
Cases cited:	Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs[2020] FCA 557 APE16 v Minister for Home Affairs [2020] FCAFC 93 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs[2020] FCAFC 94 Buck v Bavone(1976) 135 CLR 110 CRI028 v Republic of Nauru (2018) 356 ALR 50 DGI19 v Minister for Home Affairs[2019] FCA 1867 DOB18 v Minister for Home Affairs(2019) 269 FCR 636 EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5)[2019] FCA 2073 GBV18 v Minister for Home Affairs [2019] FCA 1132 GBV18 v Minister for Home Affairs [2020] FCAFC 17 Gedeon v Commissioner of New South Wales Crime Commission(2008) 236 CLR 120 Hernandez v Minister for Home Affairs[2020] FCA 415 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 MacCormick v Federal Commissioner of Taxation (1945) 71 CLR 283 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523 Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Eshetu(1999) 197 CLR 611 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB(2004) 78 ALJR 992 Omar v Minister for Home Affairs[2019] FCA 279 Plaintiff M70/2011 v Minister for Immigration and Citizenship (the Malaysian Declaration Case)(2011) 244 CLR 144 Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151 Sowa v Minister for Home Affairs[2019] FCAFC 111 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 SZTAL v Minister for Immigration (2017) 262 CLR 362 The Council of the Municipality of Bankstown v Fripp(1919) 26 CLR 385 Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Date of hearing:	28 May 2020
Date of last submissions:	11 June 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	121
Counsel for the Appellant:	Mr N Wood
Solicitor for the Appellant:	Victorian Legal Aid
Counsel for the Respondent:	Mr G Hill
Solicitor for the Respondent:	Sparke Helmore Lawyers

ORDERS

		VID 1348 of 2019
BETWEEN:	SAFIR EDRIS ALI Appellant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGES:	COLLIER, REEVES AND DERRINGTON JJ
DATE OF ORDER:	29 JUNE 2020

THE COURT ORDERS THAT:

1. The appellant have leave to amend the notice of appeal in the form of the document filed 15 May 2020.

2. The appeal be allowed.

3. The orders of the primary judge made on 18 November 2019, by which the appellant’s application was dismissed with costs, be set aside, and in lieu...