AXT19 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 06 March 2020
• Neutral Citation: [2020] FCAFC 32
• Date: 06 March 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

AXT19 v Minister for Home Affairs [2020] FCAFC 32

Appeal from:	AXT19 v Minister for Home Affairs [2019] FCA 1423
File number:	QUD 539 of 2019
Judges:	FLICK, GRIFFITHS AND MOSHINSKY JJ
Date of judgment:	6 March 2020
Catchwords:	MIGRATION – mandatory cancellation of appellant’s visa under s 501(3A) of the Migration Act 1958 (Cth) – decision of a delegate of the Minister under s 501CA(4) not to revoke the cancellation decision – decision of the Administrative Appeals Tribunal to affirm the delegate’s decision – where the appellant was a citizen of Myanmar and relied on international non-refoulement obligations in his representations as to why the cancellation decision should be revoked – whether the Tribunal failed to consider the appellant’s representations based on non-refoulement obligations and the fear of harm if the appellant were returned to Myanmar – appeal dismissed with costs
Legislation:	Migration Act 1958 (Cth), ss 501, 501CA
Cases cited:	Ali v Minister for Immigration and Border Protection [2018] FCA 650 BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 DOB18 v Minister for Home Affairs [2019] FCAFC 63 GBV18 v Minister for Home Affairs [2020] FCAFC 17 Goundar v Minister for Immigration and Border Protection (2016) 160 ALD 123 Greene v Assistant Minister for Home Affairs [2018] FCA 919 Minister for Home Affairs v Omar (2019) 373 ALR 569 Minister for Immigration and Border Protection v Le (2016) 244 FCR 56 Omar v Minister for Home Affairs [2019] FCA 279 Sowa v Minister for Home Affairs (2019) 369 ALR 389
Date of hearing:	26 February 2020
Registry:	Queensland
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	62
Counsel for the Appellant:	Mr Hamish Clift
Solicitor for the Appellant:	Fisher Dore Lawyers
Counsel for the First Respondent:	Mr Patrick Knowles
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice, save as to costs

ORDERS

		QUD 539 of 2019
BETWEEN:	AXT19 Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES:	FLICK, GRIFFITHS AND MOSHINSKY JJ
DATE OF ORDER:	6 MARCH 2020

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. The appellant, a citizen of Myanmar, appeals from a judgment of a Judge of this Court dismissing an application for judicial review.

2. The appellant came to Australia in 2011 pursuant to a Refugee (Subclass 200) visa. In April 2015, the appellant was convicted in South Australia of an offence of indecent assault committed against a 14 year old girl. For that offence, he was sentenced to four months’ imprisonment, wholly suspended upon him entering into a bond in the sum of $200 to be of good behaviour for a period of 18 months. The appellant breached the bond and committed further offences. He was subsequently imprisoned.

3. A delegate of the first respondent (the Minister) decided to cancel the appellant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) on the basis that the appellant had been convicted of a sexually based offence involving a child and was serving a sentence of imprisonment on a full-time basis in a custodial institution (the cancellation decision). The appellant made representations to the first respondent (the Minister) pursuant to s 501CA seeking revocation of the cancellation decision.

4. In October 2018, a delegate of the Minister decided not to revoke the cancellation decision. The appellant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision not to revoke the cancellation decision. On 14 January 2019, the Tribunal decided to affirm the delegate’s decision, providing reasons for its decision (the Tribunal reasons).

5. The appellant applied to this Court for an extension of time to file an application for judicial review of the Tribunal’s decision. The application for an extension of time was heard together with the substantive application (if the extension of time were granted). The primary judge granted the appellant an extension of time, but dismissed the application for judicial review. On 23 August 2019, the primary judge delivered ex tempore reasons for his decision (the Reasons).

6. In essence, the appellant contends that the primary judge erred in not finding that the Tribunal failed to consider the appellant’s representations:

1. concerning Australia’s non-refoulement obligations in respect of the appellant; and

2. relating to the risk of harm to the appellant if he were returned to Myanmar (independently of any non-refoulement obligations).

7. The first basis relies on the judgment of Mortimer J at first instance in Omar v Minister for Home Affairs [2019] FCA 279 (Omar (first instance)). The second basis, which counsel for the appellant conceded was not advanced at first instance (transcript, p 2), relies on Goundar v Minister for Immigration and Border Protection (2016) 160 ALD 123 and Minister for Home Affairs v Omar (2019) 373 ALR 569 (Omar (FFC)).

8. For the reasons that follow, we consider the primary judge’s conclusion, that the Tribunal’s decision was not affected by jurisdictional error, to be correct. In summary, in our view, the Tribunal did meaningfully engage with, and therefore consider, the appellant’s representations concerning Australia’s non-refoulement obligations and his representations relating to the risk of harm if he were returned to Myanmar. It follows that the appeal is to be dismissed.

Background facts

9. The appellant has resided in Australia on a Refugee (Subclass 200) visa since December 2011. Between 2014 and 2017, the appellant came before the courts on a number of occasions, largely for offences he committed while under the influence of alcohol.

10. Significant among those offences was a charge of indecent assault committed against a 14 year old girl, for which the appellant was convicted and sentenced in April 2015. The police incident report states that the appellant had kissed the girl three times without permission after encountering her on a tram. As noted above, for this offence the appellant was sentenced to 4 months’ imprisonment, wholly suspended upon him entering a $200 good behaviour bond for a period of 18 months.

11. The appellant breached this bond by committing further, minor offences. For his other offending, the appellant was sentenced, cumulatively, to an additional period of two months and 12 days. However, this additional period was suspended for 18 months upon the appellant entering into a good behaviour bond of $300. The appellant again breached his bond and served the additional two months and 12 days’ imprisonment.

12. While serving his term of imprisonment, a delegate of the Minister made the cancellation decision pursuant to s 501(3A) of the Migration Act. The appellant requested that the cancellation decision be revoked. The appellant completed a form headed “Request for revocation of a mandatory visa cancellation under s501(3A)”. In the box...