Atkins v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 11 September 2019
• Neutral Citation: [2019] FCAFC 159
• Date: 11 September 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Atkins v Minister for Home Affairs [2019] FCAFC 159

Appeal from:	Atkins v Minister for Home Affairs & Anor [2019] FCCA 245
File number:	VID 132 of 2019
Judges:	DAVIES, MOSHINSKY AND STEWARD JJ
Date of judgment:	11 September 2019
Catchwords:	MIGRATION – appeal from a decision of the Federal Circuit Court of Australia – protection visa – where visa was cancelled on the basis that the appellant provided incorrect answers in his visa application – whether the Tribunal failed to consider that, on cancellation of the visa, the appellant was at immediate and ongoing risk of being removed to Iran or taken to a regional processing country pursuant to s 198AD of the Migration Act 1958 (Cth) – whether the Tribunal failed to give reasons for concluding that the appellant was not at real risk of significant harm – whether the Tribunal’s decision was legally unreasonable insofar as it made adverse credibility assessments which were perfunctory, emphatic and unsustainable on their own terms – appeal dismissed
Legislation:	Acts Interpretation Act 1901 (Cth) s 13 Migration Act 1958 (Cth) ss 5, 5AA, 36, 101, 107, 108, 109, 189, 197C, 198, 198AD Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth) Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) Migration Regulations 1994 (Cth) reg 2.41
Cases cited:	Al-Kateb v Godwin (2004) 219 CLR 562 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 BMV16 v Minister for Home Affairs (2018) 261 FCR 476 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506 Navoto v Minister for Home Affairs [2019] FCA 295 Navoto v Minister for Home Affairs [2019] FCAFC 135 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd (1963) 109 CLR 276 Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 367 ALR 711 Rahmatullah v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 200 SZSZM v Secretary, Department of Immigration and Border Protection [2017] FCA 458
Date of hearing:	8 May 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	65
Counsel for the Appellant:	Mr M Albert
Solicitor for the Appellant:	Clothier Anderson & Associates
Counsel for the First Respondent:	Mr G Hill
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice

ORDERS

		VID 132 of 2019
BETWEEN:	HAROLD ATKINS (A PSEUDONYM) Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES:	DAVIES, MOSHINSKY AND STEWARD JJ
DATE OF ORDER:	11 SEPTEMBER 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”). The Tribunal decided to affirm a decision of a delegate of the first respondent (the “Minister”) to cancel the appellant’s protection (subclass 866) visa pursuant to s 109(1) of the Migration Act 1958 (Cth) (the “Migration Act”). The appellant is from Iran. He arrived in Australia in 2010 and was issued a protection visa in 2011. This was subsequently cancelled because it was said that when the appellant made his visa application he provided false information to the Department of Home Affairs (as it is now called) (the “Department”).

Legislative Provisions

2. The legislative provisions which are the subject of this appeal are set out below.

3. Section 101 of the Migration Act provides that a non-citizen must complete a visa application in such a way that no incorrect answers are given or provided.

4. Section 107 of the Migration Act sets out what is to occur if s 101 is not complied with. It is relevantly in the following terms:

Notice of incorrect applications

(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a) giving particulars of the possible non-compliance; and

(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i) if the holder disputes that there was non-compliance:

(A) shows that there was compliance; and

(B) in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii) if the holder accepts that there was non-compliance:

(A) give reasons for the non-compliance; and

(B) shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:

(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii) if the holder gives the Minister a written response within that period—when the response is given; or

(iii) otherwise—at the end of that period; …

5. Section 108 of the Migration Act confers on the Minister a power to relevantly decide whether there has been non-compliance with s 101. It provides:

Decision about non‑compliance

The Minister is to:

(a) consider any response...