CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 23 December 2020
• Neutral Citation: [2020] FCA 1855
• Court: Federal Court
• Date: 23 December 2020

Federal Court of Australia

CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855

File number:	NSD 860 of 2020
Judgment of:	GRIFFITHS J
Date of judgment:	23 December 2020
Catchwords:	MIGRATION – judicial review of a decision by the Acting Minister under s 501A(2) of the Migration Act 1958 (Cth) (Act) to set aside a decision of the Administrative Appeals Tribunal and refuse the applicant’s application for a Safe Haven Enterprise (Class XE) visa – acceptance by the Acting Minister that refusal of the visa meant that the applicant would be removed to his country of origin in breach of Australia’s international non-refoulement obligations and at risk of being killed – significance of the structure of s 501A(2) of the Act – significance of separate pre-conditions to the exercise of the power, including a separate pre-condition concerning the Acting Minister’s satisfaction that refusal of a visa is in the “national interest” – whether the Acting Minister erred in the particular circumstances of the case by failing to consider the implications of Australia acting in breach of its international non-refoulement obligations in his assessment of the “national interest” under s 501A(2)(e) of the Act – Acting Minister fell into jurisdictional error by assessing the question of “national interest” on an erroneously narrow basis, which reflects unreasonableness and/or an incorrect understanding of the law – Acting Minister distorted his decision-making process by deferring his consideration of the implications of Australia breaching its international non-refoulement obligations to a later stage of the decision- making process relating to his residual discretion – Acting Minister’s decision set aside ; ADMINISTRATIVE LAW – consideration of the nature and scope of judicial review of subjective jurisdictional facts with respect to illogical, irrational or unreasonable reasoning and the need to have a correct understanding of the law
Legislation:	Migration Act 1958 (Cth), ss 5H, 5J, 35A, 36, 37A, 91A-91X, 195A, 197C, 198, 501, 501A, 501BA, 501C, 501CA Immigration and Refugee Protection Act (S.C. 2001, c. 27) (Canada), s 34
Cases cited:	Agraira v Canada (Public Safety and Emergency Preparedness) [2013] SCC 36; 2 S.C.R. 559 Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 109; 380 ALR 393 Applicant M 117 of 2007 v Minister for Immigration and Citizenship [2008] FCA 1838 Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; 94 ALJR 897 AQM18 v Minister for Immigration and Border Protection [2018] FCA 944; 162 ALD 449 AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27; 268 FCR 424 Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 BAL19 v Minister for Home Affairs [2019] FCA 2189 BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 Buck v Bavone [1976] HCA 24; 135 CLR 110 CPJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 980 FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 FRH18 v Minister for Home Affairs [2018] FCA 1769 Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; 236 CLR 120 Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 Jione v Minister for Immigration and Border Protection [2015] FCA 144; 232 FCR 120 KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12 Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] FCA 1218; 256 FCR 50 Madafferi v Minister for Immigration & Multicultural Affairs [2002] FCAFC 220 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCAFC 121 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; 210 CLR 1 Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 Onus v Minister for the Environment [2020] FCA 1807 Plaintiff M61/2010E v The Commonwealth (Offshore Processing Case) [2010] HCA 41; 243 CLR 319 R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 959
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	141
Date of last submission:	18 December 2020
Date of hearing:	28 September and 10 December 2020
Counsel for the Applicant:	Mr N M Wood with Mr D J McDonald-Norman
Solicitor for the Applicant:	Human Rights for All
Counsel for the Respondents:	Ms R Francois with Ms K Morris
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

		NSD 860 of 2020
BETWEEN:	CWY20 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; MINISTER FOR HOME AFFAIRS Second Respondent ; ACTING MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVIES AND MULTICULTURAL AFFAIRS Third Respondent

order made by:	GRIFFITHS J
DATE OF ORDER:	23 december 2020

THE COURT ORDERS THAT:

1. The third respondent’s decision dated 16 July 2020 be set aside.

2. The applicant pay the third respondent’s costs in respect of and incidental to the hearing on 28 September 2020, as agreed or taxed.

3. The third respondent pay the applicant’s costs of and incidental to the amended originating application, as agreed or taxed.

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

REASONS FOR JUDGMENT

Introduction	[1]
Summary of background matters	[10]
Relevant extracts from the Acting Minister’s statement of reasons	[28]
The Department’s brief to the Acting Minister	[36]
The applicant’s submissions summarised	[39]
The Acting Minister’s submissions summarised	[54]
The...