Ali v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: STEWARD J
• Judgment Date: 18 November 2019
• Neutral Citation: [2019] FCA 1900
• Date: 18 November 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Ali v Minister for Home Affairs [2019] FCA 1900

File number:	VID 318 of 2018
Judge:	STEWARD J
Date of judgment:	18 November 2019
Catchwords:	MIGRATION – application for judicial review of a decision of the Assistant Minister for Home Affairs not to revoke a visa cancellation – where visa was mandatorily cancelled as the applicant did not pass the character test by reason of his substantial criminal record – whether the Assistant Minister misunderstood the Migration Act 1958 (Cth) or its operation in concluding or assuming that certain claims would “necessarily” be considered in any future protection visa application – whether the Assistant Minister misunderstood the Act or its operation in concluding or assuming that the applicant’s claims would be considered in the same manner in any future protection visa application – whether the Assistant Minister misunderstood the Act or its operation in concluding or assuming that Australia’s non‑refoulement obligations with respect to the applicant would be considered in any future protection visa application
Legislation:	Migration Act 1958 (Cth) ss 5H, 5J, 36, 65, 499, 501, 501BA, 501CA Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) ; Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, signed 31 January 1967, 606 UNTS 267 (entered into force for Australia 13 December 1973) International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Cases cited:	BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 CRI028 v Republic of Nauru [2018] HCA 24; (2018) 356 ALR 50 DOB18 v Minister for Home Affairs [2018] FCA 1523 DOB18 v Minister for Home Affairs [2019] FCAFC 63 FQM18 v Minister for Home Affairs [2019] FCA 1263 GBV18 v Minister for Home Affairs [2019] FCA 1132 Ibrahim v Minister for Home Affairs [2019] FCAFC 89 Minister for Home Affairs v Omar [2019] FCAFC 188 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599 Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 Omar v Minister for Home Affairs [2019] FCA 279 SZBZJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 771 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 VPKY v Minister for Home Affairs [2019] FCA 1767
Date of hearing:	30 August 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	47
Counsel for the Applicant:	Mr N Wood
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the Respondent:	Mr G Hill
Solicitor for the Respondent:	Sparke Helmore Lawyers

ORDERS

		VID 318 of 2018
BETWEEN:	SAFIR EDRIS ALI Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGE:	STEWARD J
DATE OF ORDER:	18 NOVEMBER 2019

THE COURT ORDERS THAT:

1. The application for judicial review be dismissed with costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

1. The applicant is a citizen of Ethiopia. He entered Australia in 2008 as the holder of a provisional spouse visa. Later, he was granted a partner visa. On 25 September 2015, he was convicted of two counts of indecent assault on a young woman who was a passenger in his taxi. I shall describe these crimes in more detail below. He was sentenced to imprisonment for 16 months for one count and 10 months for the other count (seven months of the second sentence was served concurrently with the first). In 2016, a delegate of the respondent (the “Minister”) cancelled his visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the “Act”) (the “cancellation decision”). The applicant did not pass the character test. The applicant then made representations pursuant to s 501CA(3) of the Act in support of a revocation of the delegate’s decision. On 28 February 2018, the Assistant Minister decided not to revoke the cancellation of the applicant’s visa pursuant to s 501CA(4) of the Act. The applicant seeks judicial review of that decision in this Court. An earlier hearing date had been vacated with the making of consent orders.

Legislative Provision

2. Section 501CA of the Act provides as follows:

Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for making the original decision; and

(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3) As soon as practicable after making the original decision, the Minister must:

(a) give the person, in the way that the Minister considers appropriate in the circumstances:

(i) a written notice that sets out the original decision; and

(ii) particulars of the relevant information; and

(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

(5) If the Minister revokes the original decision, the original decision is taken not to have been made.

(6) Any detention of the person that occurred during any part of the period:

(a) beginning when the original decision was made; and

(b) ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

Facts

3. The applicant did not dispute the account of his criminal offending as set out in the reasons for decision of the Assistant Minister. These had been derived from the sentencing remarks of the presiding County Court judge.

4. In 2013, the applicant was a taxi driver in Melbourne. Late one evening his car was hailed by three young women in...