CTB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judge: STEWART J
• Judgment Date: 18 December 2019
• Neutral Citation: [2019] FCA 2128
• Court: Federal Court
• Date: 18 December 2019

FEDERAL COURT OF AUSTRALIA

CTB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2128

File number:	NSD 2080 of 2018
Judge:	STEWART J
Date of judgment:	18 December 2019
Catchwords:	MIGRATION – Global Special Humanitarian visa – where applicant’s visa cancelled by delegate of the Minister – request for revocation of mandatory visa cancellation under s 501CA(4) of the Migration Act 1958 (Cth) – where applicant claimed harm if he is returned to his country of origin on account of his ethnicity, religious beliefs and family history – whether Tribunal failed to engage in an active intellectual process with the submission – whether Tribunal failed to carry out its statutory task to review – decision set aside
Legislation:	Federal Court Rules 2011 (Cth) r 4.12 Migration Act 1958 (Cth) ss 36, 197C, 198, 476A, 500, 501, 501CA, 501E
Cases cited:	AFAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; 243 FCR 451 Ali v Minister for Immigration and Border Protection [2018] FCA 650 AQM18 v Minister for Immigration and Border Protection [2018] FCA 944; 162 ALD 449 BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576 DOB18 v Minister for Home Affairs [2018] FCA 1523 DOB18 v Minister for Home Affairs [2019] FCAFC 63 FYBR v Minister for Home Affairs [2019] FCAFC 185 Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 Minister of Home Affairs v Omar [2019] FCAFC 188 NKWF v Minister for Immigration and Border Protection [2018] FCA 409 Tickner v Chapman [1995] FCA 1726; 57 FCR 451
Date of hearing:	16 July 2019
Date of last submissions:	28 November 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	61
Counsel for the Applicant:	T Baw and D J MacDonald-Norman (Pro Bono)
Counsel for the First Respondent:	B Kaplan and K Hooper
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent	The Second Respondent filed a submitting notice save as to costs

ORDERS

		NSD 2080 of 2018
BETWEEN:	CTB19 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	STEWART J
DATE OF ORDER:	18 December 2019

THE COURT ORDERS THAT:

1. The applicant has leave to file, and shall forthwith file, a further amended originating application for review of a migration decision in the form of Annexure A to the applicant’s submissions filed on 14 November 2019.

2. A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal made on 24 August 2018 (file number 2018/3271).

3. A writ of mandamus issue requiring the Administrative Appeals Tribunal to reconsider and re-determine the application for review according to law.

4. The first respondent is to pay the costs of the applicant, either as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1. The applicant is 28 years old and is a citizen of Iraq. He identifies as an Assyrian Christian. He and members of his family, including his mother, fled Iraq to a refugee camp in Syria after the killing of his father in October 2004 and the kidnapping, for a period of time, of his then 10 year old sister.

2. With the assistance of family members already in Australia, the applicant and members of his family were able to arrange to travel to Australia. They arrived in November 2007, when the applicant was 16 years of age.

3. The applicant’s immediate family in Australia consists of his mother, his two brothers, one older and the other younger, and his younger sister.

4. The applicant is referred to in these proceedings by a pseudonym by order of the Court at the applicant’s request in order to protect his identity in respect of the issues – which will become apparent – concerning his possible qualification for a protection visa in Australia.

5. The applicant was granted an offshore humanitarian visa (Class XB, subclass 202, Global Special Humanitarian) by which he resided in Australia.

6. Between 2009 and 2017, the applicant was convicted of numerous offences summarised as follows:

• Goods in custody presumed stolen: 4 offences

• Assault occasioning actual bodily harm: 3 offences

• Possession of a prohibited drug: 6 offences

• Supply of a prohibited drug: 1 offence

• Driving while unlicensed or disqualified: 4 offences

• Breach of bail: 1 offence

• Stealing: 2 offences

• Possession of offensive weapon: 2 offences

• Affray: 3 offences

• Unlawful entry: 2 offences

• Resisting police: 2 offences.

7. In particular, in September 2013 the applicant was convicted in the District Court of New South Wales at Campbelltown of the offence of ongoing supply of prohibited drugs and sentenced to 2 years and 8 months imprisonment with a non-parole period of 1 year and 4 months.

8. The result of that conviction and sentence was that the applicant’s visa was automatically cancelled by the then named Minister for Immigration and Border Protection on 15 May 2018 under s 501(3A) of the Migration Act 1958 (Cth) on the basis that the Minister was satisfied that the applicant does not pass the “character test” as he has a “substantial criminal record” having been, relevantly, sentenced to a term of imprisonment of 12 months or more (s 501(6)(a) read with s 501(7)(c)).

9. The cancellation decision was reviewed by a delegate of the Minister of Home Affairs who, on 4 June 2018, decided under s 501CA(4) of the Act not to revoke the visa cancellation. The delegate was not satisfied that the applicant passed the character test as defined in s 501, nor was the delegate satisfied that there was another reason why the cancellation decision should be revoked (s 501CA(4)(b)(i) and (ii)).

10. The Minister is now styled as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

11. The applicant then applied to the Administrative Appeals Tribunal pursuant to s 500(1)(ba) of the Act for a merits review of the delegate’s decision. On 24 August 2018, the Tribunal affirmed the delegate’s decision.

12. In this Court, the applicant seeks to review the decision of the Tribunal. The application for review is brought under s 476A of the Act. The grant of relief that is sought by the applicant is dependent upon him establishing that the Tribunal’s decision is affected by jurisdictional error.

Extension of time

13. The applicant’s application for review of the Tribunal’s decision was 57 days out time. The applicant accordingly sought an extension of time.

14. The Minister accepted that he suffered no prejudice on account of the lateness of the application, and he consented to the extension of time. An order was accordingly made extending time to the day on which...