EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 10 December 2021
• Neutral Citation: [2021] FCA 1536
• Court: Federal Court
• Date: 10 December 2021

Federal Court of Australia

EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536

File number(s):	VID 284 of 2021
Judgment of:	PERRY J
Date of judgment:	10 December 2021
Catchwords:	MIGRATION – application for judicial review of decision of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs – where Minister refused to grant applicant protection visa on character grounds under s 501(1) of Migration Act 1958 (Cth) – where applicant had committed offences as a child for which no convictions were recorded – whether Minister’s finding that the prospect of ministerial intervention to exercise the Minister’s personal, non-compellable powers in the future to grant a visa or make the applicant subject to a residence determination was not “unrealistic” was illogical or irrational – where Minister found that any future reoffending by the applicant could have “serious consequences” for community and “great harm” could result – where Minister found that “any level of risk is unacceptable” – jurisdictional error established ; MIGRATION – where probable consequence of refusal of visa application would be indefinite detention – where prolonged and indefinite detention was likely to exacerbate the applicant’s existing mental health issues – whether substantial and clearly articulated claim made that the psychological harm from which the applicant would be likely to suffer as a result of indefinite detention would reach the level of cruel, inhuman or degrading treatment contrary to Art 7 of the International Covenant on Civil and Political Rights – where Minister failed to meaningfully engage with claim – whether failure to meaningfully engage with claim was material – jurisdictional error established ; MIGRATION – whether Minister lacked power to refuse to grant visa because all valid criteria had earlier been met – whether Minister or his delegate under duty to grant the visa – whether public interest criterion 4001 of Sch 4 to the Migration Regulations 1994 (Cth) invalid by reason of inconsistency with Migration Act 1958 (Cth) – KDSP v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] HCA 24; (2021) 95 ALJR 666 followed – challenge to validity of public interest criterion 4001 dismissed ; MIGRATION – whether Minister misconstrued s 501(6)(d)(i) of Migration Act 1958 (Cth) in taking into account “the nature of the harm … should [the applicant] engage in … other serious conduct” – whether no probative evidence for Minister’s finding that applicant had received “ongoing engagement with support services” or that applicant presented increased risk of offending once removed from immigration detention – whether Minister erred in failing to consider the applicant’s submissions that “community expectations” should take account of the applicant’s circumstances and in applying the deemed community expectations in Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA – whether inference should be drawn that Minister did not engage in any active intellectual process in respect of relevant material given its volume and the length of time available for his consideration – whether inference should be drawn that decision made by delegate and not Minister personally – whether the Minister’s decision to make the refusal decision personally thereby denying the applicant merits review was legally unreasonable or the product of the Minister’s failure to consider that legal consequence ; PRACTICE AND PROCEDURE – interlocutory application for leave to re-open and to file second further amended originating application refused
Legislation:	Federal Court Rules 2011 (Cth) r 40.02(b) Judiciary Act 1903 (Cth) s 39B Legislation Act 2003 (Cth) s 13(1)(b) Migration Act 1958 (Cth) ss 31(3), 36, 47(2), 65, 195A, 197AB, 198, 499, 501, 504, Pt 2, Div 3 Subdiv AA Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) Migration Regulations 1994 (Cth) Sch 2, cll 866.225(a), 866.226, 866.227, 866.231, 866.232, Sch 4 Pt 1 Children (Criminal Proceedings) Act 1987 (NSW) ss 5, 14 ; International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976, entered into force for Australia 13 November 1980) Arts 7 and 9
Cases cited:	Aerocare Flight Support Pty Ltd v Transport Workers’ Union of Australia [2018] FCAFC 74; (2018) 261 FCR 175 ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595 Australian Postal Corporation v D’Rozario [2014] FCAFC 89; (2014) 222 FCR 303 AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 AXT19 v Minister for Home Affairs [2020] FCAFC 32 BAL19 v Minister for Home Affairs [2019] FCA 2189 BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 929; (2019) 166 ALD 284 Blatch v Archer (1774) 98 ER 969 BMW16 v Minister for Immigration and Border Protection [2017] FCA 1036 Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; (2020) 276 FCR 75 Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335 Church of Scientology Inc v Woodward (1982) 154 CLR 25 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2020) 278 FCR 529 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 EPU19 v Minister for Home Affairs [2020] FCA 541 EVK18 v Minister for Home Affairs [2020] FCAFC 49; (2020) 274 FCR 598 Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Federal Commissioner of Taxation v Primary Health Care Ltd [2017] FCAFC 131; (2017) 252 FCR 496 Fualau v Minister for Home Affairs [2020] FCAFC 11 FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 Inspector General in Bankruptcy v Bradshaw [2006] FCA 22 Jones v Dunkel (1959) 101 CLR 298 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737 KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108; (2020) 279 FCR 1 KDSP v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] HCA 24; (2021) 95 ALJR 666 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175; (2020) 280 FCR 1 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Minister for Immigration and Border Protection v SZMTA [2019] HCA...