DOB18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 18 April 2019
• Neutral Citation: [2019] FCAFC 63
• Date: 18 April 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

DOB18 v Minister for Home Affairs [2019] FCAFC 63

Appeal from:	DOB18 v Minister for Home Affairs [2018] FCA 1523
File number:	NSD 2040 of 2018
Judges:	RARES, LOGAN AND ROBERTSON JJ
Date of judgment:	18 April 2019
Catchwords:	MIGRATION – appeal from judgment of judge of the Federal Court of Australia – whether the primary judge erred in concluding that the Minister had not fallen into jurisdictional error in reasoning that it was unnecessary to determine whether non-refoulement obligations were owed in respect of the appellant – whether the primary judge erred in reaching the conclusion that non-refoulement considerations would be (necessarily, as a matter of law) considered in any future protection visa application that the appellant might bring, even if the application were determined by the Minister personally – whether the primary judge erred in relying upon different stages of decision-making – relevant distinction between considering harm, or the risk of harm and hardship, and considering whether or not, if the appellant made a protection visa application, non-refoulement obligations would then be fully considered – consideration of BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 – Held: appeal dismissed ; PRACTICE AND PROCEDURE – refusal of leave to raise new ground on appeal that the Minister fell into jurisdictional error in making the decision under s 501BA of the Migration Act 1958 (Cth) outside a reasonable time for the making of such a decision
Legislation:	Federal Court of Australia Act 1976 (Cth) s 27 Migration Act 1958 (Cth) ss 4, 5, 5M, 13, 14, 15, 29, 36, 46, 47, 65, 84, 86, 189, 193, 194, 195, 196, 197C, 198, 476A 496, 500, 501, 501A, 501B, 501BA, 501CA, 501E, 501G Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth) Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) ss 5, 5M Wartime Refugees Removal Act 1949 (Cth) Migration Regulations 1994 (Cth) reg 2.52; Sch 2
Cases cited:	AFY18 v Minister for Home Affairs [2018] FCA 1566 Ahmetovic v Immigration and Naturalization Service 62 F.3d 48 (2nd Cir. 1995) Al-Sirri v Secretary of State for the Home Department [2013] 1 AC 745 Alcan (NT) Alumina Pty Ltd v Commissioner of Taxation Revenue (2009) 239 CLR 27 Ali v Minister for Immigration and Border Protection [2018] FCA 650 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27 AQM18 v Minister for Immigration and Border Protection [2018] FCA 944 ASP15 v Commonwealth of Australia (2016) 248 FCR 372 Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451 BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288 BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 EN (Serbia) v Secretary of State for the Home Department [2010] QB 633 EWG17 v Minister for Immigration and Border Protection [2018] FCA 1536 Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216 Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 Graham v Minister for Immigration and Border Protection (2017) 347 ALR 350 Greene v Assistant Minister for Home Affairs [2018] FCA 919 Koon Wing Lau v Calwell (1949) 80 CLR 533 Le v Minister for Immigration and Border Protection (2015) 237 FCR 516 M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 Minister for Immigration and Border Protection v Le (2016) 244 FCR 56 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 NKWF v Minister for Immigration and Border Protection [2018] FCA 409 Omar v Minister for Home Affairs [2019] FCA 278 Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 SCR 982 Re Minister for Immigration and Multicultural Affairs; Ex parte Hieu Trung Lam (2003) 214 CLR 1 Re Patterson; ex parte Taylor (2001) 207 CLR 391 Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 Suttor v Gondowda Pty Ltd (1950) 81 CLR 418 SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 SZOQQ v Minister for Immigration and Citizenship (2012) 200 FCR 174 SZOQQ v Minister for Immigration and Citizenship (2013) 251 CLR 577 Turay v Assistant Minister for Home Affairs [2018] FCA 1487 Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 Water Board v Moustakas (1988) 180 CLR 491 WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 Yousefi v Immigration and Naturalization Service 260 F.3d 318 (4th Cir. 2001) Yusupov v Attorney General of the United States 518 F.3d 185 (3d Circuit, 2008)
Date of hearing:	12 February 2019
Date of last submissions:	21 March 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	197
Counsel for the Appellant:	Mr A M Hochroth (pro bono)
Counsel for the Respondent:	Mr B D Kaplan
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 2040 of 2018
BETWEEN:	DOB18 Appellant
AND:	MINISTER FOR HOME AFFAIRS Respondent

...