DGP20 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: MOSHINSKY J
• Judgment Date: 24 July 2020
• Neutral Citation: [2020] FCA 1055
• Date: 24 July 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

DGP20 v Minister for Home Affairs [2020] FCA 1055

File number:	VID 1022 of 2018
Judge:	MOSHINSKY J
Date of judgment:	24 July 2020
Catchwords:	MIGRATION – cancellation of visa pursuant to s 501(2) of the Migration Act 1958 (Cth) – where the Department gave the applicant notice of intention to consider cancellation of his visa – where the applicant in his submissions raised concerns about law and order, and safety and security in Afghanistan – where the applicant’s material stated that his life would be in danger as he would be regarded as a foreigner in Afghanistan – where the Assistant Minister considered that the applicant had made claims that could give rise to international non-refoulement obligations – where the Assistant 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 any such error was material
Legislation:	Migration Act 1958 (Cth), ss 5J, 36, 65, 501, 501BA, 501CA
Cases cited:	Ali v Minister for Home Affairs [2020] FCAFC 109 BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 DGI19 v Minister for Home Affairs [2019] FCA 1867 DHS17 v Assistant Minister for Immigration and Border Protection (2018) 267 FCR 411 Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309 Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Omar v Minister for Home Affairs [2019] FCA 279 Re Patterson; Ex parte Taylor (2001) 207 CLR 391 Steyn v Minister for Immigration and Border Protection [2017] FCA 1131 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
Date of hearing:	12 March 2020
Date of last submissions:	17 July 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	54
Counsel for the Applicant:	Mr N Wood
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the Respondent:	Mr W Mosley
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		VID 1022 of 2018
BETWEEN:	DGP20 Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGE:	MOSHINSKY J
DATE OF ORDER:	24 JULY 2020

THE COURT ORDERS THAT:

1. A writ of certiorari issue quashing the purported decision of the Assistant Minister for Home Affairs dated 31 July 2018 to cancel the applicant’s Class BB Subclass 155 Resident Return Five Year visa.

2. The applicant have liberty to apply within 14 days to seek any further relief.

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

THE COURT DIRECTS THAT:

4. Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the applicant’s costs.

5. 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 is a citizen of Afghanistan, arrived in Australia in 1996. In July 1999, he was sentenced to a term of imprisonment of six months, to be served by way of an intensive correction order, after being convicted of a variety of charges. In March 2002, he was sentenced to six years and six months imprisonment for the offence of intentionally cause serious injury. In 2005, the then Department of Immigration and Multicultural and Indigenous Affairs gave the applicant notice of a decision not to cancel his visa. The applicant was, however, warned that visa refusal or cancellation might be reconsidered if he committed any further offences.

2. On 29 June 2007, the applicant was convicted of the offences of unlawful assault (two charges) and make threat to kill. He was sentenced to a community based order for 12 months. These further offences came to the attention of the then Department of Immigration and Citizenship in 2012, when the applicant made an application for a Class BB Subclass 155 Resident Return Five Year visa.

3. On 17 May 2017, the Department of Immigration and Border Protection gave the applicant notice of an intention to consider cancellation of his visa (a Class BB Subclass 155 Resident Return Five Year visa issued in October 2012) under s 501(2) of the Migration Act 1958 (Cth). The applicant was given an opportunity to make submissions, and subsequently provided submissions and other material, including a number of statutory declarations, to the Department. In these submissions, the applicant expressed concern for his safety and security if returned to Afghanistan. In one of the statutory declarations, it was stated that the applicant’s life would be in danger if he returned to Afghanistan as Afghans “see him as a foreigner”.

4. On 31 July 2018, the Assistant Minister for Home Affairs (the Assistant Minister), exercising the power personally, decided to cancel the applicant’s visa under s 501(2) (the cancellation decision).

5. The applicant has commenced a proceeding in this Court seeking judicial review of the cancellation decision. By his amended originating application for review of a migration decision dated 17 May 2019, the applicant contends that the Assistant Minister misunderstood the Migration Act or its operation in three respects, and thus failed to carry out his statutory task. The three alleged misunderstandings (which it will be convenient to refer to as “grounds”, even though they appear as particulars under a single ground in the amended originating application) are as follows:

1. First, the Assistant Minister misunderstood that the applicant’s claims would “necessarily” be considered in the “highly likely” scenario that any protection visa application was considered by a delegate; the applicant contends that that was incorrect because Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b) (Direction 75) does not require that the “protection” criteria in ss 36(2)(a) and (aa) be considered before all other criteria for a protection visa (ground 1).

2. Secondly, the Assistant Minister incorrectly assumed that...