DGI19 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: MOSHINSKY J
• Judgment Date: 14 November 2019
• Neutral Citation: [2019] FCA 1867
• Date: 14 November 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

DGI19 v Minister for Home Affairs [2019] FCA 1867

File number:	VID 1180 of 2018
Judge:	MOSHINSKY J
Date of judgment:	14 November 2019
Catchwords:	MIGRATION – mandatory cancellation of applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) – decision by the Minister under s 501CA(4) not to revoke the cancellation decision – where applicant was a national of Sierra Leone whose mother had been granted a Refugee and Humanitarian (Class XB) Woman at Risk (Subclass 204) visa – where the applicant made submissions to the Minister that returning the applicant to Sierra Leone would breach Australia’s non-refoulement obligations under international law – where the Minister stated that it was unnecessary to determine whether non-refoulement obligations were owed as the applicant was able to make a valid application for a protection visa – whether the Minister’s decision was affected by any of the misunderstandings alleged by the applicant – whether the Minister failed to give genuine consideration to matters raised by the applicant
Legislation:	Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 499, 501, 501BA, 501CA Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Cases cited:	Ali v Minister for Immigration and Border Protection [2018] FCA 650 BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 DOB18 v Minister for Home Affairs [2019] FCAFC 63 GBV18 v Minister for Home Affairs [2019] FCA 1132 Goundar v Minister for Immigration and Border Protection (2016) 160 ALD 123 Greene v Assistant Minister for Home Affairs [2018] FCA 919 Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423 Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 Ibrahim v Minister for Home Affairs [2019] FCAFC 89 Minister for Home Affairs v Omar [2019] FCAFC 188 Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523 Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 Omar v Minister for Home Affairs [2019] FCA 729 Sowa v Minister for Home Affairs [2019] FCAFC 111 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 Turay v Assistant Minister for Home Affairs [2018] FCA 1487 Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22
Date of hearing:	4 March 2019
Date of last submissions:	8 November 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	98
Counsel for the Applicant:	Mr N Wood
Solicitor for the Applicant:	Holding Redlich
Counsel for the Respondent:	Mr R Knowles
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		VID 1180 of 2018
BETWEEN:	DGI19 Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGE:	MOSHINSKY J
DATE OF ORDER:	14 NOVEMBER 2019

THE COURT ORDERS THAT:

1. The decision of the respondent made on 13 August 2018 not to revoke the decision to cancel the applicant’s visa be set aside.

2. The respondent determine the applicant’s application for revocation of the decision to cancel his visa pursuant to s 501CA of the Migration Act 1958 (Cth) according to law.

3. Subject to paragraph 4, the respondent pay the applicant’s costs of the proceeding, to be fixed by way of a lump sum.

4. If the respondent wishes to seek a variation of the costs order in paragraph 3, he may give notice in writing to the Court and the applicant within seven business days. Directions will then be made for the determination of the issue of costs on the papers.

THE COURT DIRECTS THAT:

5. Subject to paragraph 4, within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the applicant’s costs. In the absence of any agreement:

   1. within 21 days, the applicant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

   2. within a further 14 days, the respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

   3. in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the applicant’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1. The applicant, who was born in Sierra Leone, arrived in Australia in 2009. His mother had been granted a Refugee and Humanitarian (Class XB) – Woman at Risk (Subclass 204) visa, and he had been granted a like visa as a member of her family unit. The applicant was aged 17 years at the time the visa was granted, and 18 years at the time of his arrival in Australia.

2. On 30 January 2015, the applicant’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the cancellation decision). An application by the applicant for revocation of the cancellation decision was rejected by the Assistant Minister for Immigration and Border Protection on 29 August 2016. However, that decision was set aside by the Court on the basis that the Assistant Minister, in reaching the conclusion that the applicant represented “an unacceptable risk of harm to the Australian community”, had failed to consider a particular, significant aspect of the applicant’s submissions and evidence.

3. Following that decision, the applicant’s lawyers, Holding Redlich, made further submissions in support of the applicant’s application for revocation of the cancellation decision. These submissions also referred to and relied on earlier submissions that had been made by, or on behalf of, the applicant. Prominent among the submissions was that the applicant would suffer serious harm if returned to Sierra Leone and that returning the applicant to Sierra Leone would breach Australia’s non-refoulement obligations under international law. In particular, the applicant stated that his country was at war, his sister had been kidnapped by rebels, his father had been killed by rebels, and he feared he would share the same fate if he was returned.

4. On 13 August 2018, the respondent (the Minister) decided not to revoke the cancellation decision (the non-revocation decision). The Minister stated that he was not satisfied, for the purposes of s 501CA(4), that there was another reason...