ECE21 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 22 November 2021
• Neutral Citation: [2021] FCA 1447
• Court: Federal Court
• Date: 22 November 2021

Federal Court of Australia

ECE21 v Minister for Home Affairs [2021] FCA 1447

File number:	WAD 104 of 2021
Judgment of:	JACKSON J
Date of judgment:	22 November 2021
Catchwords:	MIGRATION - application for judicial review of a decision made by the Minister under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the applicant's visa - whether the Minister failed to make findings on claims made by the applicant to engage Australia's protection obligations - whether the Minister engaged in an active intellectual process when considering the claims - characterisation of the Minister's findings - Minister rejected claims on the basis of lack of evidence - in the circumstances Minister not obliged to consider the probability that harm would occur - adequate engagement with the claims - application dismissed ; PRACTICE AND PROCEDURE - suppression orders - applicant a citizen of South Sudan - Minister accepted that Australia owed non-refoulement obligations to the applicant - real risk of serious harm to the applicant if returned to South Sudan - s 91X of the Migration Act 1958 (Cth) not applicable - suppression order under s 37AF of the Federal Court of Australia Act 1976 (Cth) necessary to protect the safety of the applicant - applicant's name suppressed and pseudonym applied
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG Migration Act 1958 (Cth) ss 5AAA, 91X, 197C, 198, 501, 501CA
Cases cited:	AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 364 ALR 202 BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; (2020) 385 ALR 286 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474 EXT20 v Minister for Home Affairs [2021] FCA 629 G v Minister for Immigration and Border Protection [2018] FCA 1229; (2018) 266 FCR 511 Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569 Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; (2010) 117 ALD 441 Perera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 403 Warnakulasuriya v Minister for Immigration and Multicultural Affairs (unreported, Finkelstein J, 6 April 1998)
Division:	General Division
Registry:	Western Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	61
Date of last submissions:	1 November 2021 (applicant) 4 November 2021 (respondent)
Date of hearing:	22 October 2021
Counsel for the Applicant:	Mr HW Glenister
Solicitor for the Applicant:	William Gerard Legal Pty Ltd
Counsel for the Respondent:	Mr PR Macliver
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		WAD 104 of 2021
BETWEEN:	ECE21 Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

order made by:	JACKSON J
DATE OF ORDER:	22 NOVEMBER 2021

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant must pay the respondent's costs of the application on a lump sum basis.

3. On or before 6 December 2021, the parties must confer and submit any minute of consent fixing an appropriate lump sum figure as to costs.

4. If no agreement is reached, the costs will be referred to a Registrar to determine an appropriate lump sum figure.

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

REASONS FOR JUDGMENT

JACKSON J:

1. The applicant seeks judicial review of a decision that the respondent (Minister) made under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of a visa which the applicant held.

2. The applicant needed an extension of time to make the application because his solicitor filed it after 4.30 pm on the last day on which it was required to be filed. That meant that he was deemed to have filed the application on the next day on which the court was open for business. The solicitor has affirmed an affidavit which confirms that the time of filing was due to inadvertence on his part. The Minister neither consented to nor opposed the extension of time. Given that the extension was required for a short period of time only, and the circumstances had been adequately explained, I made orders at the hearing that the extension would be granted, and the hearing was conducted as an application for judicial review.

3. The sole ground of the application is that the Minister, the applicant contends, failed or refused to make findings on claims made by the applicant to engage Australia's protection obligations although, as will be seen, the basis of the application shifted over the course of the hearing. For reasons that follow, the application will be dismissed.

Suppression of the applicant's name

4. These proceedings concern the likelihood that the applicant will experience significant harm if he is returned to his country of origin, South Sudan. In the decision under review, the Minister accepted that there was a real risk of such harm. In 2019, the applicant applied for a protection visa. That application was refused on the ground that the applicant, having been convicted of a particularly serious crime, was a danger to the Australian community. The delegate who decided the application did, however, accept that Australia had non-refoulement obligations to the applicant because there was a real risk that he would be targeted for serious harm in South Sudan.

5. Since that application for a protection visa was potentially relevant to the present matter, I required submissions from the parties as to whether s 91X of the Migration Act applied to this proceeding so as to prohibit publication of the applicant's name. Section 91X(1)(a) relevantly provides that the section applies to a proceeding before this court 'if the proceeding relates to a person in the person's capacity as … a person who applied for a protection visa'.

6. The applicant submitted that s 91X did apply because, while this proceeding is not primarily about the applicant's protection visa application, the Minister repeatedly refers to that application in the decision under review and the court will have to refer to it in its judgment. The applicant submitted that the words 'relates to' in s 91X(1) are capable of being interpreted broadly and, given the obvious beneficial purpose of s 91X, they should be given such an interpretation.

7. What that submission overlooks, with respect, is that, beneficial or not, s 91X represents an incursion into the important principle of open justice. It is doubtful...