BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 28 May 2020
• Neutral Citation: [2020] FCAFC 94
• Date: 28 May 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94

Appeal from:	BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 929
File number:	NSD 1139 of 2019
Judges:	WHITE, WIGNEY AND BROMWICH JJ
Date of judgment:	28 May 2020
Catchwords:	MIGRATION – appeal from orders of the Federal Court of Australia dismissing an application for judicial review of a decision of the Minister – where Minister exercised discretion under s 501(1) to refuse to grant protection visa – no error by primary judge established – appeal dismissed
Legislation:	Migration Act 1958 (Cth) ss 5(1), 36(1B), 36(1C), 51A, 54, 55, 56, 57, 189, 197C, 198, 501(1), 501(6) 501(6)(d)(v), 501G(1)(e) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Cases cited:	AEM20 v Minister for Home Affairs [2020] FCA 623 ARG15 v Minister for Immigration and Border Protection 250 FCR 109; [2016] FCAFC 174 AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27 BAL19 v Minister for Home Affairs [2019] FCA 2189 BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54 BFW20 by his Litigation Representative BFW20A v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 562 CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 Doney v The Queen (1990) 171 CLR 207 EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423; [2018] FCAFC 225 Minister for Home Affairs v Buadromo 267 FCR 320; [2018] FCAFC 151 Minister for Home Affairs v Omar (2019) 373 ALR 569; [2019] FCAFC 188 Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513; [2019] FCAFC 7 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32 Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81; [2017] FCAFC 200 Plaintiff M46/2013 v Minister for Immigration and Border Protection (2014) 139 ALD 277; [2014] FCA 90 Sagar v O’Sullivan (2011) 193 FCR 311; [2011] FCA 182 Singh v Minister for Home Affairs [2020] FCAFC 7 SS v Australian Crime Commission (2009) 224 FCR 439; [2009] FCA 580 SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089 SZWCO v Minister for Immigration and Border Protection [2016] FCA 51
Date of hearing:	6 November 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	353
Counsel for the Appellant:	Mr S Beckett with Mr M Robinson
Counsel for the Respondent:	Mr P Herzfeld with Mr D Reynolds
Solicitor for the Respondent:	Minter Ellison Lawyers

Table of Corrections
19 April 2021	In [206] replaced “21 January 2014” with “12 January 2014” and in [333] and [335] replaced “12 January 2015” with “12 January 2014”.

ORDERS

		NSD 1139 of 2019
BETWEEN:	BHL19 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	WHITE, WIGNEY AND BROMWICH JJ
DATE OF ORDER:	28 may 2020

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

WHITE J:

1. The circumstances of this appeal and the provisions in the Migration Act 1958 (Cth) (the Act) which are relevant to it are set out in the reasons of Bromwich J. I agree that the appeal should be dismissed and with the orders proposed by his Honour. Subject to one matter, I agree generally with the reasons of Bromwich J and do not wish to add to them.

2. My qualification relates to the appellant’s submission that his letter of 8 July 2015 should be regarded as having been given to the Minister within the meaning of s 55(1) of the Act because the effect of his migration agents’ letter of 4 September 2017 had been to incorporate it by reference. I wish to state my own reasons for concluding that that submission should be rejected.

3. The appellant’s submission, advanced following a question from the Bench during the hearing of the appeal, was that his letter of 8 July 2015 had been “given to the Minister” under s 55 because it had been incorporated by reference in his migration agents’ response of 4 September 2017 to the Minister’s notice of intention to consider refusal ( the NOICR). The argument was that, the information in the letter having been given under s 55, it was material to which the Minister was, by s 54(1) and (2)(c), to have regard. The appellant’s alternative submission was that the information had been given (again by incorporation by reference) in response to an invitation by the Minister pursuant to s...