DVE18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 14 May 2020
• Neutral Citation: [2020] FCAFC 83
• Date: 14 May 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

DVE18 v Minister for Home Affairs [2020] FCAFC 83

Appeal from:	DVE18 v Minister for Home Affairs [2019] FCA 1389
File number:	NSD 1701 of 2019
Judges:	PERRAM, CHARLESWORTH AND STEWART JJ
Date of judgment:	14 May 2020
Catchwords:	MIGRATION – appeal from orders dismissing application for judicial review of a migration decision – respondent Minister refusing to grant the appellant a visa in the exercise of the power conferred by s 501(1) of the Migration Act 1958 (Cth) – whether appellant made a claim that his wife and child would be at risk of harm if the visa was refused so as to give rise to an obligation in the Minister to consider it – whether Minister in fact considered such a claim – whether such failure amounted to jurisdictional error in the circumstance of the case – whether breach of rules of procedural fairness – whether constructive failure on the part of the Minister to exercise the jurisdiction conferred by s 501(1)
Legislation:	Migration Act 1958 (Cth) ss 5H, 46, 54, 55, 474, 476A, 499, 501, 501G Migration Regulations 1994 (Cth) cl 201.211
Cases cited:	Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 DVE18 v Minister for Home Affairs [2019] FCA 1389 Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132
Date of hearing:	11 February 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	65
Counsel for the Appellant:	Mr D Hooke SC with Mr S Lawrence
Solicitor for the Appellant:	Hearn Legal
Counsel for the Respondent:	Mr G Kennett SC with Ms K Hooper
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 1701 of 2019
BETWEEN:	DVE18 Appellant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGES:	PERRAM, CHARLESWORTH AND STEWART JJ
DATE OF ORDER:	14 MAY 2020

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The orders made on 30 August 2019 in NSD 1318 of 2018 be set aside.

3. A writ in the nature of certiorari issue quashing the decision of the respondent to refuse to grant the appellant an In-Country Humanitarian (Class XB) visa.

4. The appellant’s application for an In-Country Humanitarian (Class XB) visa be remitted to the respondent to be determined in accordance with the law.

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

REASONS FOR JUDGMENT

THE COURT:

1. The appellant is a citizen of Afghanistan. From 2010, he worked as an interpreter assisting the Australian Defence Force (ADF) in Southern Afghanistan. He continues to reside in Afghanistan with his wife and his two year old son.

2. In 2012, the Australian Government announced that it would offer resettlement to locally-engaged Afghan employees and their immediate family members who were considered to be at risk of harm due to their association with Australian Government agencies. In July 2013, the appellant received a letter advising that he had been certified as eligible to apply for a Refugee and Humanitarian (Class XB) visa under that program.

3. The appellant lodged a valid application for the visa under s 46 of the Migration Act 1958 (Cth) on 20 July 2013. In support of his application, the appellant claimed that he and his family members were at risk of being murdered by Jihadists in retributive attacks. At that time the appellant was a single man with no children.

4. For reasons that are presently unclear, nearly five years passed before the visa application was determined. By that time, the appellant had married and become a father and his wife and infant son had each been joined on the visa application as secondary applicants.

5. The first respondent Minister refused to grant the appellant the visa. The appellant made an application for judicial review of that decision to this Court under s 476A of the Act. Among other things, he argued that the Minister had failed to have regard to the risk of harm to his wife and child should the visa application be refused.

6. The primary judge accepted that the Minister had not had regard to the risk of harm faced by the appellant’s wife and child, but nonetheless concluded that the appellant had not advanced a claim about that risk in a way that would give rise to an obligation to consider it, and so dismissed the application for review: DVE18 v Minister for Home Affairs [2019] FCA 1389. For the reasons that follow, the appeal from that judgment should be allowed.

THE ACT

7. Section 55 of the Act provides that until the Minister has made a decision as to whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision. Section 54 provides that the Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application, including information contained in a document attached to the application and any additional information given under s 55.

8. The criteria for the visa included that prescribed in cl 201.211 of Sch 2 to the Migration Regulations 1994 (Cth), namely:

201.211

(1) The applicant:

…

(aa) meets the requirements of subclause (1A); or

…

(1A) The applicant meets the requirements of this subclause if:

(a) the Minister has specified, in an instrument in writing, one or more classes of persons for this paragraph; and

(b) a relevant Minister has certified that the applicant is:

(i) in one of those classes; and

(ii) at risk of harm for a reason, or reasons, that relate to the applicant being in that class of persons.

9. Section 501(1) of the Act confers a discretion on the Minister to refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the character test. Section 501(6)(b) provides that a person does not pass the character test if:

… the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

10. Section 501G(1) provides that if a decision is made under s 501(1) to refuse to grant a visa to a person, the Minister must give the person a written notice that:

…

(c) sets out the decision; and

(d) specifies the provision under which the decision was made and sets out the effect of that provision; and

(e) sets out the reasons (other than non-disclosable information) for the decision; and

(3) A notice under subsection (1) must be given in the prescribed manner.

(4) A...