ERY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judge: STEWART J
• Judgment Date: 04 May 2020
• Neutral Citation: [2020] FCA 569
• Court: Federal Court
• Date: 04 May 2020

FEDERAL COURT OF AUSTRALIA

ERY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 569

File number:	NSD 1964 of 2019
Judge:	STEWART J
Date of judgment:	4 May 2020
Catchwords:	MIGRATION – judicial review of Minister’s decision under s 501(1) of the Migration Act 1958 (Cth) to refuse the applicant a protection visa on character grounds – whether Minister properly applied s 501(6)(h) – whether Minister reasonably drew the inference from an Interpol Red Notice that the applicant would be a risk to the Australian community or a segment of that community– whether Minister was obliged to consider country information available to a Departmental officer and whether Minister’s acceptance that Australia has non-refoulement obligations in respect of the applicant was sufficient consideration of the consequences of the Minister’s decision – whether Minister’s decision was legally unreasonable – decision set aside
Legislation:	Australian Security Intelligence Organisation Act 1979 (Cth) s 4 Migration Act 1958 (Cth) ss 24, 36(2)(aa), 116(1)(e), 129(1)(e), 134B(b), 140XG(1), 268BK(1), 268CL(2), 370(2), 371(3), 432(2), 433(3), 487C(1), 499, 501(1), 501(3), 501(6), 501CA, 503(3)
Cases cited:	Applicant M 117 of 2007 v Minister for Immigration and Citizenship [2008] FCA 1838 Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 BAL19 v Minister for Home Affairs [2019] FCA 2189 Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 250 FCR 209 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 DHS17 v Assistant Minister for Immigration and Border Protection [2018] FCAFC 209Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; 197 ALR 389 FUD18 v Minister for Home Affairs [2019] FCA 1858 FYBR v Minister for Home Affairs [2019] FCAFC 185; 374 ALR 601 Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; 162 CLR 24 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Tickner v Chapman [1995] FCA 987; 57 FCR 451 ; Oxford English Dictionary Online (Oxford University Press, March 2020)
Date of hearing:	1 April 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	114
Counsel for the Applicant:	L J Karp
Solicitor for the Applicant:	Lawside Lawyers
Solicitor for the Respondent:	B D Kaplan
Counsel for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 1964 of 2019
BETWEEN:	ERY19 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	STEWART J
DATE OF ORDER:	4 MAY 2020

THE COURT ORDERS THAT:

1. The applicant has leave to rely on his further amended originating application in the form emailed to the Associate to Justice Stewart on 31 March 2020 and is directed to file the further amended originating application within 5 days of these orders.

2. The decision of the respondent made on 14 October 2019 to refuse to grant the applicant a protection visa is set aside.

3. The applicant has leave to apply to relist the matter for submissions on the relief sought in paragraph 4 of the further amended originating application.

4. The respondent is to pay the applicant’s costs.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1. This is an application for judicial review of the personal decision of the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse the applicant a Protection (Class XA) visa. The refusal decision was made under s 501(1) of the Migration Act 1958 (Cth) on the basis that the Minister was not satisfied that the applicant passes the character test as defined in s 501(6)(h). That basis is that there is in force an Interpol notice in relation to the applicant from which it is reasonable to infer that the applicant would present a risk to the Australian community or a segment of that community.

Background

2. The applicant is a citizen of the People’s Republic of China (PRC). He arrived in Australia in October 2012 on a tourist visa and applied for a protection visa. In that application he alleged religious persecution in the PRC on the basis of his professed Christianity.

3. An Interpol Red Notice (IRN) in relation to the applicant was issued on 12 March 2013. It states that the applicant had been charged under Art 193 of the criminal law of the PRC with diverting 60 million yuan from the account of a company of which he was legal representative to his private use and of conspiring with others in using three companies to defraud a fourth company of 15 million yuan. The IRN states that the applicant is a “fugitive wanted for prosecution”.

4. On 6 March 2013, the applicant was invited to comment on information in the possession of the Minister’s Department. That information was that the Australian Government had been notified by PRC authorities that the applicant was wanted by the Public Security Bureau in the PRC on suspicion of committing a serious economic crime, namely embezzlement of company funds in the amount of roughly equivalent to AU$6 million. It was said that Chinese authorities had also informed the Government that a criminal investigation had been initiated in the case and that the applicant’s Chinese passport had been cancelled.

5. In a fax sent to the Department on 15 March 2013, the applicant explained that he denied embezzlement. He claimed that he was unable to pay a commission to a local government mayor for the latter’s services in arranging a loan because a bank had reneged on a promise to give the applicant a business loan, and now the mayor wanted revenge. The mayor’s desire for revenge is said to be the source of the criminal charges which the applicant denies. A civil judgment had been given against the applicant on 18 February 2013.

6. On 11 May 2018, the applicant was given notice of the intention to consider refusing to grant him a protection visa. The notice stated that the Department held information about the applicant’s “criminal history” which suggested that he may not pass the character test. The information included the letter from the Department dated 6 March 2013, the applicant’s response to that letter dated 15 March 2013 and copies of Chinese civil litigation documents which the applicant had given to the Department on 6 June 2013.

7. Before responding to the notice of 11 May 2018, the applicant submitted a freedom of information (FOI) request...