BDQ19 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: KERR J
• Judgment Date: 04 October 2019
• Neutral Citation: [2019] FCA 1630
• Court: Federal Court
• Date: 04 October 2019

FEDERAL COURT OF AUSTRALIA

BDQ19 v Minister for Home Affairs [2019] FCA 1630

Review of:	Application for judicial review of QJTT and Minister for Home Affairs (Migration) [2019] AATA 152
File number:	VID 274 of 2019
Judge:	KERR J
Date of judgment:	4 October 2019
Catchwords:	MIGRATION – non-revocation of visa cancellation affirmed by Administrative Appeals Tribunal – non-refoulement obligations - construction of cll 14.1(2) and 14.1(6) of Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA in light of potential inconsistency with Migration Act 1958 (Cth) – consideration of PRHR and Minister for Immigration and Border Protection [2017] AATA 2782 – cl 14.1(2) not inconsistent on proper construction – incorrect construction not material ; MIGRATION – non-revocation of visa cancellation affirmed by Administrative Appeals Tribunal - failure to consider risk of harm to non-citizen if returned by virtue of risk to civilians – jurisdictional error established ; MIGRATION – non-revocation of visa cancellation affirmed by Administrative Appeals Tribunal - failure to consider recent correspondence relevant to best interests of Applicant’s children in Australia - jurisdictional error established ; MIGRATION – non-revocation of visa cancellation affirmed by Administrative Appeals Tribunal – character test - whether offences serious offences as committed against government representatives or officials due to the position they hold, or in the performance of their duties – any error not material
Legislation:	Acts Interpretation Act 1901 (Cth) s 46 Legislation Act 2003 (Cth) ss 8, 13 Migration Act 1958 (Cth) ss 36(2)(aa), 36(2A), 46A, 197C, 198(6), 195A, 417, 476A, 499, 501, 501CA
Cases cited:	Coco v R [1994] HCA 15; 179 CLR 427 Craig v South Australia [1995] HCA 58; 184 CLR 163 New South Wales v Commonwealth [2006] HCA 52; 229 CLR 1 PRHR and Minister for Immigration and Border Protection [2017] AATA 2782
Date of hearing:	12 September 2019
Date of last submissions:	17 September 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	143
Counsel for the Applicant:	Mr O Ciolek
Solicitor for the Applicant:	Asylum Seeker Resource Centre
Counsel for the Respondents:	Mr D Brown
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

		VID 274 of 2019
BETWEEN:	BDQ19 Applicant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	KERR J
DATE OF ORDER:	4 OCTOBER 2019

THE COURT ORDERS THAT:

1. Grounds 2 and 3 of the Applicant’s application for judicial review be upheld, and Ground 1 and Ground 4 be dismissed.

2. The decision of the Administrative Appeals Tribunal dated 13 February 2019 be quashed.

3. The matter be remitted to the Administrative Appeals Tribunal for determination according to law by a tribunal differently constituted.

4. The Minister pay the Applicant’s costs of the application.

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

REASONS FOR JUDGMENT

KERR J:

1. This is an application for judicial review of a decision of the Second Respondent (the Tribunal) affirming a decision of a delegate of the First Respondent (the Minister) not to revoke the mandatory cancellation of the Applicant’s Class CD Subclass 851 (Resolution of Status) visa under s 501CA of the Migration Act 1958 (Cth) (Migration Act).

2. The Applicant, BDQ19, was born in Urizgan Province Afghanistan. He fled that country after he and his family suffered persecution in the aftermath of the Taliban having assumed control of his home area. He arrived in Australia, unaccompanied, on 7 March 2001 when he was 20 years of age. BDQ19 initially held a number of Temporary Protection Visas, prior to his being granted a Permanent Resolution of Status Visa (Visa) on 4 December 2008.

3. Having arrived in Australia, notwithstanding a lack of formal education he found work in a number of industries involving labouring, construction and manufacturing.

4. In 2004 the Applicant commenced a long term relationship with an Australian citizen, Ms Y.S., and together they have had three children. He is also stepfather to that Australian citizen’s daughter from a former partner.

5. That no doubt is all to the good, but unfortunately BDQ19 also acquired a criminal record. He has many convictions dating from 2005 for minor offences, and some for offences of considerable seriousness.

6. By way of a letter dated 20 May 2015 from the Department of Immigration and Border Protection, the Applicant was advised that on 5 May 2015 his Visa had been cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act.

7. BDQ19 was advised that his Visa had been cancelled was because he had failed the character test due to having a substantial criminal record, as defined by s 501(6)(a) and s 501(7) of the Migration Act, and because he was serving a full-time sentence of imprisonment.

8. BDQ19 immediately sought review of the Minister’s delegate’s decision in the Administrative Appeals Tribunal (Tribunal).

9. Upon his release from prison on 14 May 2015 the Applicant was taken into immigration detention pending the completion of the Tribunal’s review.

10. The Tribunal made a decision to affirm the Minister’s delegate’s decision not to revoke the mandatory cancellation of BDQ19’s visa on 13 February 2019. It is that decision which is the subject of these proceedings.

11. There is one further background circumstance that it is necessary to identify before turning to the Applicant’s claims, the Tribunal’s decision and the grounds upon which judicial review has been sought. It is that on 6 October 2016 an International Treaties Obligations Assessment (ITOA) was completed. The assessor found that BDQ19 had a well-founded fear of being persecuted for a Refugee Convention reason and was at real risk of suffering significant harm were he to be returned to Afghanistan. The ITOA accordingly concluded that Australia has non-refoulement obligations to BDQ19. The assessor’s reasoning as submitted to be relevant to BDQ19’s application for judicial review will be returned to later in these reasons.

THE APPLICANT’S CLAIMS

12. The Applicant set out his claims in a document titled “Applicant’s Statement of Facts Issues and Contentions”. He provided this document to the Tribunal on 11 January 2019. Only three of those claims are directly relevant to these proceedings.

13. The first relevant claim relates to the...