DQM18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 25 June 2020
• Neutral Citation: [2020] FCAFC 110
• Date: 25 June 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

DQM18 v Minister for Home Affairs [2020] FCAFC 110

Appeal from:	DQM18 v Minister for Home Affairs [2019] FCA 852
File number:	VID 727 of 2019
Judges:	BROMBERG, MORTIMER AND SNADEN JJ
Date of judgment:	25 June 2020
Catchwords:	MIGRATION ACT – s 501CA(4) Migration Act 1958 (Cth) – application for judicial review – where Assistant Minister determined not to revoke cancellation of appellant’s visa – whether the Assistant Minister failed to perform the requisite statutory task by (i) giving meaningful consideration to various representations made by the appellant; (ii) by failing to determine the country to which the appellant would be returned; and (iii) by failing to consider that indefinite detention would be a legal consequence of the non-revocation of the cancellation of the appellant’s visa – whether any error was material to the exercise of power and therefore a jurisdictional error – decision of Assistant Minister set aside.
Legislation:	Acts Interpretation Act 1901 (Cth) s 25D Migration Act 1958 (Cth) ss 499, 501, 501CA Federal Court Rules 2011 (Cth) rr 4.12, 4.19(3)
Cases cited:	Anees v Minister for Immigration and Border Protection [2020] FCAFC 28 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 AXT19 v Minister for Home Affairs [2020] FCAFC 32 AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; 243 FCR 451 BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 BSE17 v Minister for Home Affairs [2018] FCA 1926 CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 Dang v Administrative Appeals Tribunal [2019] FCAFC 220 DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10; 268 FCR 64 DOB18 v Minister for Home Affairs [2019] FCAFC 63; 269 FCR 636 DQM18 v Minister for Home Affairs [2019] FCA 852 EVK18 v Minister for Home Affairs [2020] FCAFC 49 GBV18 v Minister for Home Affairs [2020] FCAFC 17 Guclukol v Minister for Home Affairs [2020] FCA 61 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 Hernandez v Minister for Home Affairs [2020] FCA 415 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 260 FCR 523 Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198; 267 FCR 492 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Mulligan v National Disability Insurance Agency [2015] FCA 544; 233 FCR 201 Navoto v Minister for Home Affairs [2019] FCAFC 135 Republic of Nauru v WET040 (No 2) [2018] HCA 60; 93 ALJR 102 Sowa v Minister for Home Affairs [2019] FCAFC 111 Tickner v Chapman [1995] FCA 1726; 57 FCR 451 Tsvetnenko v United States of America [2019] FCAFC 74; 367 ALR 465 Uelese v Minister for Immigration and Border Protection and Another [2016] FCA 348; 248 FCR 296
Date of hearing:	13 November 2019
Registry:
Division:
National Practice Area:
Category:	Catchwords
Number of paragraphs:	170
Counsel for the Appellant:	Mr G Gilbert SC with Ms K Grinberg (Pro Bono)
Counsel for the Respondent:	Mr G Hill
Solicitor for the Respondent:	Australian Government Solicitor

Table of Corrections
7 July 2020	In paragraph 113, second sentence, “is” has been added after the words “A reviewing court”.

ORDERS

		VID 727 of 2019
BETWEEN:	DQM18 Appellant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGES:	BROMBERG, MORTIMER AND SNADEN JJ
DATE OF ORDER:	25 June 2020

THE COURT ORDERS THAT:

1. The appellant have leave to rely on the amended notice of appeal filed on 4 November 2019.

2. The appeal be allowed with costs, such costs to be payable directly to counsel for the appellant in accordance with r 4.19(3) of the Federal Court Rules 2011 (Cth).

3. The orders made by this Court on 7 June 2019 are set aside, and in lieu thereof:

1. An order in the nature of certiorari be issued to the Assistant Minister for Home Affairs quashing the decision made on 3 July 2018 under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the decision made on 4 May 2016 under s 501(3A) of the Migration Act 1958 (Cth) to cancel the appellant’s Class XB Subclass 200 Refugee (Permanent) visa;

2. The matter be remitted to the Minister for the making of a decision under s 501(CA)(4) according to law;

3. The respondent pay the appellant’s costs of the application for judicial review.

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

REASONS FOR JUDGMENT

BROMBERG AND MORTIMER JJ:

1. This is an appeal from orders made by a single judge of this Court, dismissing the appellant’s application for review of a decision by the Assistant Minister for Home Affairs, under s 501CA(4) of the Migration Act 1958 (Cth) (the Act). By that decision, the Assistant Minister refused to revoke the mandatory cancellation of the appellant’s permanent visa.

2. For the reasons set out below, the appeal should be allowed.

Factual background

3. The factual background is not in dispute.

4. The appellant was born in 1989. There is conflicting evidence about where he was born: whether in what is now South Sudan, or in Khartoum, which is in Sudan. He is ethnically South Sudanese. The appellant’s family was, as we describe below, caught up in the tragedies of the Sudanese Civil War. In 2011 South Sudan became an independent nation. The questions whether he was a national of Sudan or South Sudan, and whether he would be returned to Sudan or to South Sudan if his visa cancellation was not revoked, were matters of some uncertainty in the materials, and also in the Assistant Minister’s decision.

5. The Assistant Minister accepted that:

1. as a child, the appellant witnessed numerous war atrocities in Sudan;

2. his father disappeared in the Sudanese Civil War around 1999, presumed dead;

3. his father’s disappearance and presumed death has had a traumatic effect on the appellant’s family;

4. the appellant and his family fled to Egypt, where they experienced violence from the authorities and local people; and

5. the appellant’s early life was...