AQM18 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Judgment Date: 22 February 2019
• Neutral Citation: [2019] FCAFC 27
• Date: 22 February 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27

Appeal from:	AQM18 v Minister for Immigration and Border Protection [2018] FCA 944
File number:	VID 829 of 2018
Judges:	BESANKO, WHITE AND THAWLEY JJ
Date of judgment:	22 February 2019
Catchwords:	MIGRATION – appeal from the Federal Court of Australia dismissing an application for judicial review of a decision of the Minister to exercise the power in s 501A(2) of the Migration Act 1958 (Cth) – whether the Minister misunderstood the operation of ss 198 and 197C – whether the Minister erroneously understood that the appellant would not be refouled under s 198 of the Act – whether the primary judge erred in concluding that the Minister’s decision did not occur outside of a reasonable time
Legislation:	Migration Act 1958 (Cth) ss 36, 36(2C), 48A, 48B, 65, 195A, 197AB, 197C, 198, 417, 476A, 501, 501A, 501E Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Cases cited:	AQM18 v Minister for Immigration and Border Protection [2018] FCA 944 Blatch v Archer (1774) 1 Cowp 63 BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 Coulton v Holcombe (1986) 162 CLR 1 DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 FRH18 v Minister for Home Affairs [2018] FCA 1769 Jones v Dunkel (1959) 101 CLR 298 Koon Wing Lau v Calwell (1949) 80 CLR 533 SZSSJ v Minister for Immigration and Border Protection (2015) 234 FCR 1 Thornton v Repatriation Commission (1981) 52 FLR 285 Water Board v Moustakas (1988) 180 CLR 491
Date of hearing:	12 November 2018
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	132
Counsel for the Appellant:	Ms GA Costello and Mr M Guo
Solicitor for the Appellant:	WLW Migration Lawyers
Counsel for the Respondent:	Mr CJ Tran
Solicitor for the Respondent:	Sparke Helmore Lawyers

ORDERS

		VID 829 of 2018
BETWEEN:	AQM18 Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGES:	BESANKO, WHITE AND THAWLEY JJ
DATE OF ORDER:	22 February 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The cross-appeal be allowed.

3. The decision of the primary judge be set aside and in lieu thereof:

   1. the application be dismissed; and

   2. the applicant pay the respondent’s costs.

4. Unless either party applies within 7 days for a different order with respect to costs, the appellant pay the respondent’s costs of the appeal and cross-appeal.

5. The parties file a joint submission indicating any redactions that should be made to the Court’s reasons for judgment (or competing submissions if agreement is not reached) on or before 12 noon on Tuesday, 26 February 2019. The Court will then consider publishing a redacted form of its reasons.

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

REASONS FOR JUDGMENT

BESANKO AND THAWLEY JJ:

1. On 9 January 2018, the Minister for Home Affairs made a decision under s 501A(2) to refuse the appellant’s application for a Protection (Class XA) visa. The appellant sought judicial review of that decision under s 476A of the Migration Act 1958 (Cth).

2. On 21 June 2018, the primary judge set aside the Minister’s decision, accepting “ground 2” of the grounds of review, on the basis that the Minister erroneously understood that the appellant would not be refouled under s 198 of the Act in breach of Australia’s non-refoulement obligations: AQM18 v Minister for Immigration and Border Protection [2018] FCA 944 at [82].

3. The primary judge rejected other grounds which had been put to him. Of particular relevance to the appeal, the primary judge rejected “ground 1” of the grounds of review, that the Minister’s decision under s 501A(2) was made without jurisdiction because the purported exercise of power occurred outside of a reasonable time.

4. Although successful in setting aside the decision under s 501A(2), the appellant appealed, contending that ground 1 should have been successful; the primary judge should have held that the purported exercise of power occurred outside of a reasonable time. The appellant sought a declaration that the Minister no longer had the power to make a decision under s 501A(2) because the time in which such a decision could lawfully be made had expired.

5. The Minister cross-appealed on the ground that the primary judge erred in concluding that the Minister had misunderstood the legal consequences of his decision and failed to take those consequences into account. The Minister also filed a notice of contention, which he sought to amend at hearing. The notice of contention, discussed below, related to ground 1.

6. For the reasons which follow:

1. the cross-appeal should succeed;

2. the appeal should be dismissed;

3. the notice of contention and proposed amended notice of contention do not need to be considered.

BACKGROUND

7. The appellant is a citizen of [redacted]. She was arrested on [redacted] during an investigation by Victoria Police into a [redacted]. The appellant and her partner were identified as [redacted].

8. In [redacted], the appellant was sentenced to imprisonment for four years and three months for [redacted] offences. She pleaded guilty to three charges of [redacted]. She also pleaded guilty to a summary offence of dealing with property suspected of being the proceeds of crime.

9. The County Court of Victoria’s reasons for sentence stated at [redacted]:

[redacted]

10. The appellant applied for a protection visa on [redacted]. Her application was refused by a delegate of the Minister. She sought review in the Administrative Appeals Tribunal. On [redacted], the Tribunal (First Tribunal) found that the complementary protection criterion in s 36(2)(aa) was satisfied. Its decision was in the following terms:

The Tribunal remits the matter for reconsideration and directs that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

11. On remittal, a delegate of the Minister refused her protection visa application on character grounds pursuant to s 501(1) of the Act.

12. The appellant...