CCU21 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 31 May 2023
• Neutral Citation: [2023] FCAFC 87
• Date: 31 May 2023
• Court: Full Federal Court (Australia)

Federal Court of Australia

CCU21 v Minister for Home Affairs [2023] FCAFC 87

Appeal from:	CCU21 v Minister for Home Affairs [2022] FCA 28
File number:	NSD 72 of 2022
Judgment of:	PERRAM, Halley and Goodman JJ
Date of judgment:	31 May 2023
Catchwords:	MIGRATION – appeal from decision of Federal Court of Australia dismissing judicial review application concerning two decisions of the Minister – where first Minister cancelled Appellant's visa under s 501(3) of the Migration Act 1958 (Cth) ('Cancellation Decision') – whether Minister could rationally conclude that cancellation of the Appellant's visa was in national interest without considering reputational consequences for Australia of breaching non-refoulement obligations under international law – whether Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 288 FCR 565 and ENT19 v Minister for Home Affairs [2021] FCAFC 217; 289 FCR 100 are distinguishable – whether there was material before Minister suggesting non-refoulement obligations enlivened. MIGRATION – where Appellant subject of adverse security assessment by ASIO – whether first Minister failed to consider risk of harm posed by Appellant to Australian community – whether irrational or unreasonable for Minister to find Appellant posed risk to community on basis of adverse security assessment. MIGRATION – where ASIO subsequently revoked adverse security assessment and issued qualified security assessment – where second Minister decided not to revoke Cancellation Decision under s 501C(4) ('Non-Revocation Decision') on basis that Appellant was not of good character on basis of Appellant's past involvement in people smuggling activities – whether Minister considered Appellant's involvement in people smuggling activities as criminal conduct – whether Minister failed to afford Appellant procedural fairness by informing Appellant she would only consider his 'general conduct' – whether Minister's findings about criminality of involvement in people smuggling irrational or unreasonable – whether Minister's finding that Appellant's actions posed significant risk to people being smuggled was irrational. ADMINISTRATIVE LAW – materiality – where majority in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 held applicant for judicial review bears onus of proving realistic possibility that a different decision could have been made – where state of authorities unclear after Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737.
Legislation:	Australian Security Intelligence Organisation Act 1979 (Cth) s 4 Criminal Code (Cth) Div 73, ss 4.1(1)(c), 5.4(1), 5.6(2), 73.1, 73.1(1)(b), 73.3, 73.3A, 73.4 Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 91X, 197C, 198, 501, 501(2), 501(3), 501(4A), 501(4B), 501(6)(c), 501(6)(g), 501A, 501A(2), 501A(3), 501C, 501C(4) Migration Regulations 1994 (Cth), sch 2 cl 790.227 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 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) arts 6, 7 Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Cases cited:	Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 288 FCR 565 CCU21 v Minister for Home Affairs [2022] FCA 28; 398 ALR 535 CRI026 v Republic of Nauru [2018] HCA 19; 92 ALJR 529 ENT19 v Minister for Home Affairs [2021] FCAFC 217; 289 FCR 100 Jaffarie v Director General of Security [2014] FCAFC 102; 226 FCR 505 Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10; 141 FCR 552 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 Roach v Minister for Immigration and Border Protection [2016] FCA 750
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	113
Date of last submissions:	14 April 2022 (Appellant) 5 May 2022 (Respondent)
Date of hearing:	19 May 2022
Counsel for the Appellant:	Mr T Brennan SC, Ms K Heath and Ms C Brain
Solicitor for the Appellant:	SBA Lawyers
Counsel for the Respondent:	Mr P Herzfeld SC and Mr J Wherrett
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 72 of 2022
BETWEEN:	CCU21 Appellant
AND:	MINISTER FOR HOME AFFAIRS Respondent

order made by:	PERRAM, Halley and Goodman JJ
DATE OF ORDER:	31 may 2023

THE COURT ORDERS THAT:

1. Appeal allowed.

2. Set aside the orders made by the Federal Court of Australia on 31 January 2022 insofar as they concern the Respondent and in lieu thereof order that:

   1. There issue to the First Respondent a writ of certiorari absolute in the first instance quashing the decision of the First Respondent made on 9 September 2021.

   2. There issue to the First Respondent a writ of mandamus absolute in the first instance directing the First Respondent to determine the Appellant’s revocation application according to law within 28 days.

   3. The First Respondent pay the Applicant’s costs as taxed or agreed.

3. The Respondent pay the Appellant’s costs of the appeal as taxed or agreed.

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

REASONS FOR JUDGMENT

THE COURT:

1. Three questions arise in this appeal. First, is a decision of one of the Ministers administering the Migration Act 1958 (Cth) (‘the Act’) to cancel the Appellant’s visa liable to be set aside because the Minister failed to consider the reputational consequences to Australia of breaching its non-refoulement obligations under international law? Secondly, if that question is answered in the negative, was the cancellation decision liable to be set aside on the alternative basis that the Minister had failed to consider the risk posed to the Australian community when deciding whether to...