DCC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judge: WHEELAHAN J
• Judgment Date: 26 March 2020
• Neutral Citation: [2020] FCA 395
• Date: 26 March 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

DCC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 395

File number:	VID 694 of 2018
Judge:	WHEELAHAN J
Date of judgment:	26 March 2020
Catchwords:	MIGRATION – application for judicial review of a decision of the Minister not to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) – whether the Minister constructively failed to exercise jurisdiction by failing to have regard to Australia’s non-refoulement obligations because the applicant was able to make a protection visa application – whether the Minister failed to give proper consideration to the applicant’s claims that his fear of harm if returned to South Sudan was “a reason” why the cancellation decision should be revoked – decision of the Minister quashed.
Legislation:	Migration Act 1958 (Cth) ss 36, 65, 195A, 197AB, 197C, 198, 501 and 501CA
Cases cited:	BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 EVK18 v Minister for Home Affairs [2020] FCAFC 49 Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139 GBV18 v Minister for Home Affairs [2020] FCAFC 17 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 Sowa v Minister for Home Affairs [2019] FCAFC 111; 369 ALR 389 Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531
Date of hearing:	6 March 2019
Date of last submissions:	20 November 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	42
Counsel for the Applicant:	Ms S Kelly
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the Respondent:	Ms C Symons
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		VID 694 of 2018
BETWEEN:	DCC18 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WHEELAHAN J
DATE OF ORDER:	26 March 2020

THE COURT ORDERS THAT:

1. The name of the respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. A writ in the nature of certiorari issue to the respondent quashing the decision made on 7 May 2018 refusing the applicant’s request to revoke the decision to cancel his visa.

3. A writ of mandamus issue to the respondent to consider according to law the applicant’s request that the decision to cancel his visa be revoked pursuant to s 501CA(4) of the Migration Act 1958 (Cth).

4. The respondent pay the applicant’s costs of the application.

5. Any consent request to amend these orders to fix the costs be made to Chambers by email by 4.00pm on 9 April 2020.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1. The applicant is a 30 year old Sudanese man who spent most of his childhood in a refugee camp in Kenya. In 1991, when the applicant was an infant, he fled his hometown in Sudan (now South Sudan) with his family after an attack by Arab rebels who killed his father. In April 2008, the applicant and his mother, brother, sister, and his sister’s two children, were granted humanitarian visas and they then resettled in Australia in 2009 when the applicant was 18 years of age.

2. Between 2010 and 2017, the applicant was convicted in Victoria of a number of offences. The list of offences is extensive, and includes: making threats to kill, using a prohibited weapon, intentionally causing serious injury, robbery, perjury, dealing with property being the suspected proceeds of crime, carrying an imitation firearm as a prohibited person, false imprisonment, possession of illicit drugs, contravention of family violence orders, failing to answer bail, possessing ammunition, receiving stolen goods, and unlicensed driving. The applicant was sentenced to imprisonment on a number of occasions. Some of the terms were wholly or partly suspended.

3. On 14 February 2017, the applicant was sentenced by the Magistrates’ Court of Victoria to a term of imprisonment of six months. On 10 March 2017, a delegate of the Minister cancelled the applicant’s Class XB Subclass 202 Global Humanitarian visa on the ground that that the applicant did not pass the character test, and on the ground that he was serving a sentence of imprisonment on a full time basis. By operation of s 501(3A) of the Migration Act 1958 (Cth), the cancellation of the applicant’s visa was mandatory.

4. By a written request dated 17 March 2017, the applicant requested that the decision to cancel his visa be revoked pursuant to s 501CA(4) of the Act. On 7 May 2018, the Minister, acting personally, determined not to exercise his power to revoke the original cancellation decision.

5. By this proceeding, the applicant alleges that the Minister’s decision was affected by jurisdictional error, and seeks certiorari and mandamus. There are three grounds of review. Each alleges jurisdictional error by the Minister in failing to have regard to the consequences to the appellant of the cancellation of his visa and of his removal to South Sudan.

The legislation

6. Section 501CA of the Migration Act relevantly provides –

Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for making the original decision; and

(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3) As soon as practicable after making the original decision, the Minister must:

(a) give the person, in the way that the Minister considers appropriate in the circumstances:

(i) a written notice that sets out the original decision; and

(ii) particulars of the relevant information; and

(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

…

The applicant’s representations

7. Following the...