ENT19 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 26 November 2021
• Neutral Citation: [2021] FCAFC 217
• Date: 26 November 2021
• Court: Full Federal Court (Australia)

Federal Court of Australia

ENT19 v Minister for Home Affairs [2021] FCAFC 217

Appeal from:	ENT19 v Minister For Home Affairs [2020] FCCA 2653
File number:	NSD 1272 of 2020
Judgment of:	COLLIER, KATZMANN, WHEELAHAN JJ
Date of judgment:	26 November 2021
Catchwords:	MIGRATION — appeal from decision of the Federal Circuit Court to dismiss an application for judicial review of a decision to refuse to grant a Safe Haven Enterprise visa — where Minister not satisfied that the grant of the visa was in the national interest under cl 790.227 of the Migration Regulations 1994 (Cth) — where appellant convicted of, and sentenced for, a people smuggling offence but recognised as a refugee at risk of serious harm in his country of nationality and where appellant satisfied all other visa criteria and there was no evidence that he was entitled to enter and reside in a country other than his country of nationality, whether Minister did not consider the prospect of refoulement and the potential breach by Australia of its non-refoulement treaty obligations — whether, if so, the Minister was bound to do so — whether primary judge erred by making a finding of fact in the absence of evidence — whether Minister’s decision legally unreasonable because appellant not found to be a person whom the Minister considered a danger to Australia’s security within s 36(1C) of the Migration Act 1958 (Cth) or because it was made for the purpose of further punishing the appellant
Legislation:	Acts Interpretation Act 1901 (Cth) s 25D Australian Security Intelligence Organisation Act 1979 (Cth) s 4 Evidence Act 1995 (Cth) s144 Migration Act 1958 (Cth) ss 5H, 5J, 35A, 36, 37A, 46A, 65(1), 195A, 197AB, 197C, 198(6), 496(1), 501(1) Migration Regulations 1994 (Cth) Sch 2, cl 790.227 ; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Opened for signature 10 December 1984. 1465 UNTS 85 art 3. (entered into force 26 June 1987) Convention Relating to the Status of Refugees. Opened for signature 28 July 1951. 189 UNTS 137 arts 33, 42(1). (entered into force 22 April 1954) International Covenant on Civil and Political Rights. Opened for signature 16 December 1966. 999 UNTS 171. (entered into force 23 March 1976) Protocol Relating to the Status of Refugees. Opened for signature 31 January 1967. 606 UNTS 267. (entered into force 4 October 1967) Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)
Cases cited:	Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195 Al-Kateb v Goodwin (2004) 219 CLR 562 BAL19 v Minister for Home Affairs [2019] FCA 2189; 168 ALD 276 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 Commonwealth of Australia v AJL20 [2021] HCA 21; 95 ALJR 567; 391 ALR 562 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 282 FCR 62 Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; 197 ALR 389; 73 ALD 321 Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 Hernandez v Minister for Home Affairs [2020] FCA 415 Jione v Minister for Immigration and Border Protection (2015) 232 FCR 120 KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1 Lim v Minister for Immigration (1992) 176 CLR 1 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Home Affairs v Omar (2019) 272 FCR 589 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A (2020) 279 FCR 475 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 MNLR v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] FCAFC 35 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 O’Sullivan v Farrer (1989) 168 CLR 210 Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379 Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 Plaintiff S297/2013 v Minister for Immigration and Border Protection (No 2) (2015) 255 CLR 231 R v Mackellar; ex parte Ratu (1977) 137 CLR 461 Re Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 Re Gungor and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 225 Re Patterson; Ex parte Taylor (2001) 207 CLR 391 Re Sergi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 224 Re v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	154
Date of hearing:	29 April 2021
Counsel for the Appellant:	Dr J Donnelly
Solicitor for the Appellant:	Scott Calnan Lawyer
Counsel for the Respondent:	Ms R Francois
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 1272 of 2020
BETWEEN:	ENT19 Appellant
AND:	MINISTER FOR HOME AFFAIRS Respondent

order made by:	COLLIER, KATZMANN, WHEELAHAN JJ
DATE OF ORDER:	26 November 2021

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the Federal Circuit Court dated 6 November 2020 be set aside and in lieu thereof it be ordered that:

   1. A writ of certiorari issue directed to the respondent quashing the decision of the respondent dated 13 May 2020.

   2. A writ of...