EVK18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 24 March 2020
• Neutral Citation: [2020] FCAFC 49
• Date: 24 March 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

EVK18 v Minister for Home Affairs [2020] FCAFC 49

Appeal from:	EVK18 v Minister for Home Affairs [2019] FCA 229
File number:	NSD 366 of 2019
Judges:	FLICK, GRIFFITHS AND MOSHINSKY JJ
Date of judgment:	24 March 2020
Catchwords:	MIGRATION – Ministerial decision not to set aside revocation of visa – whether clearly expressed claim – whether failure to meaningfully engage with claim
Legislation:	Migration Act 1958 (Cth) ss 501, 501CA
Cases cited:	AXT19 v Minister for Home Affairs [2020] FCAFC 32 Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107, (2017) 252 FCR 352 DOB18 v Minister for Home Affairs [2019] FCAFC 63 GBV18 v Minister for Home Affairs [2020] FCAFC 17 Minister for Home Affairs v Omar [2019] FCAFC 188, (2019) 373 ALR 569 Minister for Immigration & Border Protection v BHA17 [2018] FCAFC 68, (2018) 260 FCR 523
Date of hearing:	9 March 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	40
Counsel for the Appellant:	Mr N C Poynder
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 366 of 2019
BETWEEN:	EVK18 Appellant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGES:	FLICK, GRIFFITHS AND MOSHINSKY JJ
DATE OF ORDER:	24 MARCH 2020

THE COURT ORDERS THAT:

1. Leave be granted to file the Amended Notice of Appeal dated 9 March 2020.

2. The appeal is dismissed.

3. The Appellant should pay the costs of the Respondent, either as agreed or taxed.

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 in the present proceeding, identified by the pseudonym EVK18, is a national of Jordan.

2. On 2 February 2017, a decision was made by a delegate of the Respondent Minister to cancel the Appellant’s visa. That decision was taken pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the “Migration Act”). A request for revocation of the delegate’s decision was received by the Department on 6 February 2017. On 3 July 2018, the Assistant Minister made a decision pursuant to s 501CA(4) of the Migration Act not to revoke the delegate’s decision.

3. An application seeking judicial review of the Assistant Minister’s decision was dismissed by a Judge of this Court on 1 March 2019: EVK18 v Minister for Home Affairs [2019] FCA 229. The Appellant now appeals to this Court.

4. Before the primary Judge the now-Appellant appeared unrepresented. But before this Court the Appellant was represented by Counsel who sought leave to amend the Notice of Appeal. In summary form, the argument sought to be advanced was that the Assistant Minister had erred in not resolving claims founded upon:

• the Appellant’s claims to fear harm or “grave danger”; and/or

• the “impact upon his mental health”

if he were to be returned to Jordan. The appellable error said to have been committed by the primary Judge was in not concluding that the Assistant Minister had failed to meaningfully engage with either or both of those two claims.

5. Although leave will be granted to amend the Notice of Appeal, the appeal is to be dismissed.

THE NEED FOR CONSIDERATION OF THE CLAIMS MADE

6. The Amended Notice of Appeal is expressed in terms of the need for the Assistant Minister to “engage in an active intellectual way with the Appellant’s representations, made under s 501CA(4)(b)(ii)” of the Migration Act.

7. Section 501CA of the Migration Act provides in relevant part as follows:

Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(3) As soon as practicable after making the original decision, the Minister must:

(a) give the person, in the way that the Minister considers appropriate in the circumstances:

(i) a written notice that sets out the original decision; and

(ii) particulars of the relevant information; and

(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

…

8. The relevant legal principles were not put in issue in the current appeal. The matter which divided the parties was the application of those principles to the claims as “articulated” by the Appellant and the reasons provided by the Assistant Minister in resolving those claims.

9. Those legal principles should nevertheless be set forth, at least in summary form.

10. Of central relevance is the necessity for the Minister (or an Assistant Minister) to properly give consideration to a “representation” which has been made pursuant to s 501CA(4)(a). The representations made in response to an invitation under s 501CA(3) are “viewed as a whole, a mandatory relevant consideration, but not every statement in the representations can be so described”: Minister for Home Affairs v Omar [2019] FCAFC 188 at [34(e)], (2019) 373 ALR 569 at 582 per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ (“Omar”); GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [31(a)] per Flick, Griffiths and Moshinsky JJ (“GBV18”). See for example, Minister for Immigration & Border Protection v BHA17 [2018] FCAFC 68 at [139], (2018) 260 FCR 523 at 562 per Robertson, Moshinsky and Bromwich JJ.

11. But one particular aspect of this generally expressed principle is the necessity for the Minister (or an Assistant Minister) to give consideration to a “representation” which has been made as to the “harm” a visa holder may face if returned to a country of origin. One difficulty which was initially encountered in previous cases that have come before this Court arose because a representation as to “harm” may assume relevance to both a claim that that “harm” may provide “another reason” why a decision should be revoked (s 501CA(4)(b)(ii)), as well as giving rise to a consideration as to whether Australia owes non‑refoulement obligations to the visa holder when considering a protection visa application. There is, however, a distinction between the two decision-making processes: DOB18 v Minister for Home Affairs [2019] FCAFC 63. Robertson J (with whom Logan J agreed) there identified that distinction as follows:

[185] … In my view there is a relevant distinction between considering harm, or the risk of harm and hardship, and considering whether or not, if the appellant made a protection visa application, non-refoulement obligations would then be fully considered. That distinction follows the difference between the claims, on the one...