BAL19 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: RARES J
• Judgment Date: 24 December 2019
• Neutral Citation: [2019] FCA 2189
• Court: Federal Court
• Date: 24 December 2019

FEDERAL COURT OF AUSTRALIA

BAL19 v Minister for Home Affairs [2019] FCA 2189

File number:	NSD 393 of 2019
Judge:	RARES J
Date of judgment:	24 December 2019
Catchwords:	MIGRATION – application for Constitutional writ relief – where Minister personally refused grant of protection visa under s 501(1) of the Migration Act 1958 (Cth) because any risk of applicant being danger to Australian community under s 501(6)(d)(v) was unacceptable – where Minister found applicant to be refugee and Australia to owe applicant protection obligations – where Minister’s reasons referred to theoretical possibility of grant of another visa but did not consider legal consequence of refusal of what would happen to applicant if refouled in accordance with ss 197C and 198 of the Migration Act 1958 (Cth) – whether Minister referred to possibility of another visa to avoid immediate breach of non-refoulement obligations so applicant would be left indefinitely in immigration detention – whether Minister’s reasoning perfunctory and failed to engage in active intellectual process because of lack of consideration of legal consequences of refoulement – where reference to theoretical grant of other visa an irrelevant consideration – where applicant had no realistic prospect of being granted any other visa if Minister exercised non-compellable powers to allow application under ss 48B and or 195A of the Migration Act 1958 (Cth) because of Minister’s finding that any risk of danger to Australian community from applicant was unacceptable and such risk necessarily inherent in grant of any other visa – material jurisdictional error ; MIGRATION – whether general powers to refuse to grant visas under s 501 and its analogues in Pt 9 of the Migration Act 1958 (Cth) and prescription of PIC 4001 in cl 785.226 of the Migration Regulations 1994 (Cth) of criterion for protection visa under s 31(3) are inconsistent with specific power in s 36(1C) of the Migration Act 1958 (Cth) to refuse to grant a protection visa – where enactment of ss 36(1C) and 197C intended to codify Australia’s non-refoulement and protection obligations under Arts 32 and 33 of the Refugees Convention – where specific, mandatory and more restrictive criteria for protection visa in s 36(1C) inconsistent with s 501(6)(d)(v) and excludes availability of general powers in s 501 and its analogues in Pt 9 as a basis to refuse to grant protection visa – where PIC 4001 in cl 785.226 inconsistent with s 36(1C) ; STATUTORY INTERPRETATION – whether regulation invalid if inconsistent with specific provision of Act – where cl 786.226(a) made under s 31(3) prescribed that PIC 4001 was criterion for protection visa – where PIC 4001 prescribed disqualifying criteria that s 36(1C) expressly provided were not disqualifications for grant of protection visa – where PIC 4001 invalid as inconsistent with s 36(1C)
Legislation:	Acts Interpretation Act 1901 (Cth) s 33 Migration Act 1958 (Cth) ss 5, 5H, 5J, 5M, 31, 35A, 36, 48A, 48B, 65, 91U (repealed), 116, 189, 195A, 197A, 197B, 197C, 198, 200, 201, 411, 476A, 500, 501, 501A, 501B, 501BA, 501C, 501CA, 501F, 501G Migration Amendment Act 2014 (Cth), Sch 3, item 1 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) Sch 5 Migration Regulations 1994 (Cth), Sch 2, cll 785.226, 785.227 ; Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 Arts 1F, 32, 33
Cases cited:	Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29 David Grant & Co Pty Ltd (receiver appointed) v Westpac Banking Corporation (1995) 184 CLR 265 East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 George v Rockett (1990) 170 CLR 104 Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 Hands v Minister for Immigration and Border Protection (2019) 364 ALR 423 Harrington v Lowe (1996) 190 CLR 311 Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217 Liversidge v Anderson [1942] AC 206 McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 Reg v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 SZLDG v Minister for Immigration and Citizenship (208) 166 FCR 230 SZOQQ v Minister for Immigration and Citizenship (2013) 251 CLR 577 Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201
Date of hearing:	11 October, 19 December 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	91
Counsel for the Applicant:	Ms M Yu
Solicitor for the Applicant:	Human Rights for All
Counsel for the Respondents:	Mr B Lim
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

		NSD 393 of 2019
BETWEEN:	BAL19 Applicant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	24 DECEMBER 2019

THE COURT ORDERS THAT:

1. The decision of the first respondent made on 12 July 2019 to refuse to grant the applicant a protection visa be quashed.

2. The first or second respondent determine, as soon as reasonably practicable, the applicant’s application for a protection visa in accordance with law.

3. The first respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

RARES J:

Introduction

1. This is an application for Constitutional writ relief in respect of the decision that the first respondent, the Minister for Home Affairs, made personally on 12 July 2019 to refuse to grant a temporary protection (class 785) visa to the applicant in exercise of his power under s 501(1) of the Migration Act 1958 ...