CZW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 24 September 2020
• Neutral Citation: [2020] FCA 1380
• Court: Federal Court
• Date: 24 September 2020

Federal Court of Australia

CZW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1380

File number:	NSD 476 of 2020
Judgment of:	GRIFFITHS J
Date of judgment:	24 September 2020
Catchwords:	MIGRATION – cancellation of refugee visa under s 501(3) of the Migration Act 1958 (Cth) – subsequent refusal under s 501C(4) – applicant granted an extension of time under s 477A(2) to challenge both those decisions – whether the Minister misunderstood the relevant provisions of the Migration Act and its operation in making the visa cancellation decision – whether the misunderstandings were material so as to give rise to jurisdictional error – amended originating application upheld applying Ali v Minister for Home Affairs [2020] FCAFC 109 and DGP20 v Minister for Home Affairs [2020] FCA 1055 – both Ministerial decisions quashed and applicant’s immediate release from immigration detention ordered
Legislation:	Migration Act 1958 (Cth) ss 477A(2), 501(2), 501(3) 501C(4)
Cases cited:	Ali v Minister for Home Affairs [2020] FCAFC 10 Applicant inWAD531/2016 v Minister for Immigration and Border Protection [2018] FCAFC 213 Applicant S270/2019v Minister for Immigration and Border Protection [2020] HCA 32 BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 DGP20v Minister for Home Affairs [2020] FCA 1055 FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124 Graham v Minister for Immigration and Border Protection[2017] HCA 33; 263 CLR 1 Hernandez v Minister for Home Affairs [2020] FCA 415 Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12 Minister for Immigration and Border Protection v Le [2016] FCAFC 120; 244 FCR 56 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Re Patterson; Ex parte Taylor[2001] HCA 51; 207 CLR 391
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	42
Date of hearing:	24 September 2020
Counsel for the Applicant:	Mr N Wood
Solicitor for the Applicant:	Clothier Anderson Immigration Lawyers
Counsel for the Respondent:	Mr G Johnson SC with Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor

Table of Corrections
29 September 2020	In paragraph 2, “2018” has been replaced with “2008”

ORDERS

		NSD 476 of 2020
BETWEEN:	CZW20 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

order made by:	GRIFFITHS J
DATE OF ORDER:	24 september 2020

THE COURT ORDERS THAT:

1. Time is extended under s 477A(2) of the Migration Act 1958 (Cth) for the applicant to rely on the amended originating application.

2. The respondent’s decisions dated 13 August 2018 and 16 October 2019 be set aside.

3. The Minister is to take appropriate steps to ensure that the applicant is released immediately and forthwith from immigration detention and, without limitation thereto, such release must occur by no later than 5:00 pm today.

4. The respondent pay the applicant’s 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 an amended originating application dated 21 August 2020, the applicant seeks time to be extended under s 477A(2) of the Migration Act 1958 (Cth) (the Act) to challenge two decisions by the respondent Minister. The first decision is dated 13 August 2018 by which the Minister cancelled the applicant’s Class XB subclass 200 Refugee visa pursuant to s 501(3) of the Act. The second decision is dated 15 October 2019 by which the Minister decided under s 501C(4) not to revoke the previous cancellation decision.

2. In brief, the applicant is a citizen of South Sudan. He arrived in Australia on 27 November 2008 when he was aged 12. On 29 August 2016 he was sentenced in the Magistrates Court of Victoria to six months detention for offences of robbery. On 8 December 2017 he was sentenced in the same Court to 281 days imprisonment for offences of theft and sexual assault. The Minister’s decision to cancel the visa under s 501(3) was based on the Minister’s satisfaction that, the applicant not passing the character test, it was in the national interest to cancel his visa. This decision was made without the applicant being afforded natural justice, there being no such requirement in respect of the exercise of the power under s 501(3). In determining that there was a risk of further harm to the Australian community if the applicant committed further offences, the Minister considered the possibility that non-refoulement obligations were owed to the applicant. The Minister reasoned at [110] of his statement of reasons, however, that it was unnecessary to determine whether non-refoulement obligations were owed to the applicant for the purpose of cancelling his decision:

… as he is able to make a valid application for a Protection visa. In the (highly likely) case that such an application is considered by a delegate, non-refoulement obligations would be considered in the course of processing the application.

3. In both his written and oral submissions, the Minister drew the Court’s attention to the fact that there is an appeal on foot in FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124 in which the Minister challenges the correctness of Ali v Minister for Home Affairs [2020] FCAFC 109. Although no formal application for an adjournment was made, the Minister suggested that the Court might consider it preferable to defer the hearing and determination of this case until the outcome of that appeal was known. That suggestion was rejected, not the least because the applicant is in detention and the present state of the law is clear, as is reflected in the decisions referred to below, some of which are binding on me. Moreover, it is relevant to take into account that no hearing date has been set in respect of the appeal from FAK19. The applicant has been in immigration detention since 13 August 2018. It is highly desirable that his legal position be clarified as soon as practicable.

4. Similar considerations have caused me to deliver ex tempore reasons for judgment in this matter. Necessarily, therefore, those reasons may not be as comprehensive or elegant as ideally should be the case. The interests of justice require a prompt decision which establishes that the two relevant Ministerial decisions are invalid and that there is no basis for continuing the applicant’s immigration detention.

Extension of time

5. In support of the application for time to be extended, the applicant provided two affidavits, the first dated 23 December 2019 and the second dated 21 August 2020. In the first of those affidavits, the applicant deposed that he had attempted to challenge the non-revocation decision in November 2019 but sent his documents to the wrong Court. The applicant deposed in his second affidavit that he did not have the assistance of a migration agent or a lawyer at any stage. He said that he did not know who to call or how to get in touch with anyone who could help him. He...