CPJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judge: RARES J
• Judgment Date: 09 July 2020
• Neutral Citation: [2020] FCA 980
• Date: 09 July 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

CPJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 980

File number:	NSD 2073 of 2019
Judge:	RARES J
Date of judgment:	9 July 2020
Catchwords:	MIRGATION – application for a protection (class XA) visa –– where Minister exercised power under s 501A(2) of Migration Act 1958 (Cth) to set aside decision of Administrative Appeals Tribunal not to refuse visa under s 501 and refused visa – where Minister found substantial grounds for believing that as necessary and foreseeable consequences of applicant being removed to New Zealand she would suffer significant harm within meaning of s 36(2)(aa) and (2A), namely death and or serious injury – where Minister found he reasonably suspected applicant not pass character test under s 501(6)(c), she not satisfied him that she did and he satisfied refusal in national interest – where Minister’s reasons did not refer to or explain evaluation of how he determined that real risk of applicant’s death or serious injury if refouled outweighed by other considerations – whether Minister engaged in active intellectual process in arriving at decision to refuse to grant protection visa ; MIGRATION – Where Minister refused to grant protection visa under s 501A(2) national interest criterion –whether in determining national interest Minister had to consider circumstances and consequences for applicant of refoulement in breach of Australia’s international non-refoulement obligations owed to her – whether Minister obliged to consider impact on national interest of breach of Australia’s international non-refoulement obligations in refusing to grant protection visa under s 501A(2)
Legislation:	Acts Interpretation Act 1901(Cth) s 25D Migration Act 1958 (Cth) ss 5, 36, 48B, 54, 55, 65, 195A, 197C, 198, 501, 501A, 501E, 501G
Cases cited:	CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155 East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 EGH19 V Minister for Home Affairs [2020] FCA 692 Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 Hands v Minister for Immigration and Border Protection (2019) 267 FCR 628 Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2020] FCAFC 87 Reg v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 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:	9 July 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	54
Counsel for the Applicant:	Mr N Poynder
Counsel for the Respondent:	Mr G Kennett SC with Ms R Francois
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 2073 of 2019
BETWEEN:	CPJ16 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTRAL AFFAIRS Respondent

JUDGE:	RARES J
DATE OF ORDER:	9 JULY 2020

THE COURT ORDERS THAT:

1. The decision of the respondent made on 6 December 2019 to refuse the applicant’s application for a protection (class XA) visa be set aside.

2. The respondent determine the applicant’s application for a protection visa (class XA) according to law on or before 23 July 2020.

3. The costs of the interlocutory application, not already the subject of orders, be paid by the applicant fixed in the sum of $1500.

4. Subject to previous orders as to costs, the respondent pay the applicant’s costs of the proceeding.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

RARES J:

1. On 25 November 2019, in an earlier proceeding brought by the applicant I ordered that the Minister determine her application for a protection (subclass 866) visa pursuant to s 65 of the Migration Act 1958 (Cth) according to law on or before 6 December 2019: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033. There were two proceedings that I determined in those reasons that resulted in that order. The Minister had brought one of those proceedings seeking to challenge a subsequent decision of the Administrative Appeals Tribunal given on 18 September 2019 (the 2019 Tribunal decision) in which it decided that the application for the visa be remitted to the Minister for reconsideration in accordance with s 65 of the Act with a direction that the applicant was not to be refused the visa under s 501(1) of the Act. In those reasons, I gave some of the background to the applicant’s position as at that time.

2. On 6 December 2019, the Minister made the decision to refuse to grant the applicant a protection (class XA) visa pursuant to s 501A(2) of the Act, the validity of which she challenges in this proceeding.

3. The Minister sought to appeal from my previous decision but, on 18 May 2020, the Full Court dismissed the appeal as moot: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2020] FCAFC 87.

Background

4. On 21 September 2015 the applicant applied for a protection visa and has been in immigration detention since then. It is necessary only to refer to a few parts of the applicant’s very lengthy administrative and judicial decision-making encounters for the purposes of these reasons.

5. On 18 December 2017, the Administrative Appeals Tribunal decided that a delegate’s decision, that had rejected the applicant’s claims for a protection visa under s 501, should be set aside and remitted her application for the visa for reconsideration with a direction that she satisfied s 36(2)(aa) of the Act; namely that she had established that she met the complementary protection criterion (the 2017 Tribunal decision).

6. The parties accept that, in his decision of 6 December 2019, the Minister accurately summarised in [149] what the 2017 Tribunal decision had found in respect of s 36(2)(aa), namely:

149. On 18 December 2017, the AAT found that [the applicant] is a person in respect of whom Australia has protection obligations, based on complementary protection grounds. Having heard [the applicant’s] evidence, the Tribunal accepted [the applicant’s] claims that Mr [Ex…] an ex-partner of [the applicant's] in New Zealand, who told her of his significant involvement in the manufacture of illicit drugs, believes she betrayed him to police. The AAT also accepted that [the applicant] remained the target of a vendetta launched by Mr [Ex…], who put out a bounty for her murder, and that, some seven years later, interest in claiming the bounty for her killing still existed in New Zealand. The AAT found, based on newspaper reports (and on website encyclopaedia) about gang activity and police protection in New Zealand, that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there was a real risk that she would suffer significant harm and was not satisfied that she could obtain the protection of the authorities, such that there would not be a real risk she would suffer significant harm. Having considered the AAT's findings in this regard, I have accepted those findings. I therefore accept that [the applicant’s] situation enlivens Australia's non refoulement obligations.

(emphasis added)

7. On 17 October 2019, the Minister gave notice to the applicant that...