CCU21 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 31 January 2022
• Neutral Citation: [2022] FCA 28
• Court: Federal Court
• Date: 31 January 2022

Federal Court of Australia

CCU21 v Minister for Home Affairs [2022] FCA 28

File number(s):	NSD 668 of 2021
Judgment of:	GRIFFITHS J
Date of judgment:	31 January 2022
Catchwords:	MIGRATION – judicial review challenge to Minister’s decision to cancel applicant’s visa under s 501(3) of the Migration Act 1958 (Cth) (Cancellation Decision) and not to revoke the Cancellation Decision under s 501C(4) (Non-revocation Decision) – where pursuant to s 501(6)(g) the Cancellation Decision relied upon the existence of an Adverse Security Assessment (ASA) by the Australian Security Intelligence Organisation (ASIO) – whether Cancellation Decision invalid because Minister failed to consider nature and seriousness of risk posed by applicant to security – whether Minister acted under dictation – whether Cancellation Decision invalid because of failure to consider non-refoulement obligations in considering national interest under s 501(3)(d) – where Minister considered non-refoulement obligations in considering residual discretion – Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 and ENT19 v Minister for Home Affairs [2021] FCAFC 217 distinguishable – no material error ; MIGRATION – where ASA revoked by ASIO and Qualified Security Assessment issued (QSA) – where Minister relied upon QSA as evidence of the applicant being not of good character under s 501(6)(c) for the Non-revocation Decision – whether QSA exceeded ASIO’s statutory function – whether statements in QSA to applicant’s credibility not “related to” security – Cancellation Decision not invalid even if QSA invalid – declaratory relief inutile ; MIGRATION – whether Minister failed to afford applicant procedural fairness by putting him on notice of consideration of the applicant’s people smuggling activities as “criminal conduct” – whether Cancellation Decision legally unreasonable – whether Minister entitled to find that the applicant did not pass the character test on a different ground to that relied upon for the Cancellation Decision in making the Non-revocation Decision under s 501C(4) – Graham v Minister for Immigration and Border Protection [2016] FCA 682; 246 FCR 439 not plainly wrong – held: application dismissed
Legislation:	Australian Security Intelligence Organisation Act 1979 (Cth) ss 4(aa), 17(1)(c), 35, 36, 37 Criminal Code Act 1995 (Cth) Ch 4, Div 73, s 73.1 Migration Act 1958 (Cth) ss 501(2), 501(3), 501(6)(c), 501(6)(g), 501A, 501C(3), 501C(4) Migration Regulations 1994 (Cth) rr 2.52, 790.227
Cases cited:	Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 Church of Scientology Inc v Woodward [1982] HCA 78; 154 CLR 25 Degning v Minister for Home Affairs [2019] FCAFC 67; 270 FCR 451 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 ENT19 v Minister for Home Affairs [2021] FCAFC 217 Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; 202 FCR 417 Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774; 83 ALD 411 Graham v Minister for Immigration and Border Protection [2016] FCA 682; 246 FCR 439 Jaffarie v Director-General of Security [2014] FCAFC 102; 226 FCR 505 Kioa v West [1985] HCA 81; 159 CLR 550 Minister for Home Affairs v DMA18 as Litigation Guardian for DLZ18 [2020] HCA 43; 95 ALJR 14 Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 386 ALR 200 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10; 141 FCR 552 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133 Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; 230 FCR 367 Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; 113 CLR 475 MYVC v Director-General of Security [2014] FCA 1447; 234 FCR 134 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050 Roach v Minister for Immigration and Border Protection [2016] FCA 750 SDCV v Director-General of Security [2021] FCAFC 51; 389 ALR 372 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; 200 CLR 591 Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619 Yasmin v Attorney-General (Cth) [2015] FCAFC 145; 236 FCR 169
Division:	General Division
Registry:	New South Wales
National Practice Area:	TBC
Number of paragraphs:	99
Date of hearing:	26 November 2021
Date of last submissions:	3 December 2021
Counsel for the Applicant:	Mr T Brennan SC with Ms K Heath and Ms C Brain
Solicitor for the Applicant:	SBA Lawyers
Counsel for the Respondents:	Mr P Herzfeld SC with Mr J Wherrett
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

		NSD 668 of 2021
BETWEEN:	CCU21 Applicant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; DIRECTOR GENERAL OF SECURITY Second Respondent

order made by:	GRIFFITHS J
DATE OF ORDER:	31 January 2022

THE COURT ORDERS THAT:

1. The third further amended originating application dated 26 November 2021 be dismissed.

2. The applicant pay the respondents’ 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

GRIFFITHS J:

Introduction

1. By a third further amended originating...