EXT20 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 11 June 2021
• Neutral Citation: [2021] FCA 629
• Court: Federal Court
• Date: 11 June 2021

Federal Court of Australia

EXT20 v Minister for Home Affairs [2021] FCA 629

File number:	VID 766 of 2020
Judgment of:	O'BRYAN J
Date of judgment:	11 June 2021
Catchwords:	MIGRATION – application for judicial review of decision of the Minister refusing to revoke mandatory cancellation of visa under section 501CA(4) of the Migration Act 1958 (Cth) – where applicant did not pass character test due to having a “substantial criminal record” under section 501(6)(a) Migration Act 1958 (Cth) – whether there was another reason why mandatory cancellation should be revoked – where the applicant made representations as to the risk of harm if returned to his country of nationality – where the Minister concluded that he was unable to make a finding about the applicant’s claim to fear harm due to a lack of detail and supporting evidence – whether the Minister erred in failing to consider the applicant’s claims – whether the Minister erred in failing to notify the applicant that a reason for rejecting the claims may be the lack of elaboration and substantiation of the claims – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 476A, 500, 501, 501CA, 501G Migration Regulations 1994 (Cth) reg 2.52
Cases cited:	Ashraf v Minister for Immigration (2018) 261 FCR 97 Bale v Minister for Immigration [2020] FCA 646 BCR16 v Minister for Immigration (2017) 248 FCR 456 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 DQM18 v Minister for Home Affairs (2020) 278 FCR 529 EVK18 v Minister for Home Affairs (2020) 274 FCR 598 Goundar v Minister for Immigration [2016] FCA 1203; 160 ALD 123 Guclukol v Minister for Home Affairs [2020] FCAFC 148 Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 Minister for Home Affairs v Omar (2019) 272 FCR 589 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 Minister for Immigration v Maioha (2018) 267 FCR 643 Minister for Immigration v SZGUR (2011) 241 CLR 594 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166 Navoto v Minister for Home Affairs [2019] FCAFC 135 Perera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 403 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Twist v Randwick Municipal Council (1976) 136 CLR 106 Walker v Minister for Home Affairs [2020] FCA 909
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	73
Date of hearing:	12 March 2021
Counsel for the Applicant:	A Aleksov
Solicitor for the Applicant:	Carina Ford Immigration Lawyers
Counsel for the Respondent:	G Hill
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		VID 766 of 2020
BETWEEN:	EXT20 Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

order made by:	O’BRYAN J
DATE OF ORDER:	11 june 2021

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

O’BRYAN J

Introduction

1. This is an application made under s 476A(1)(c) of the Migration Act 1958 (Cth) (Act) seeking judicial review of a decision made personally by the Minister under s 501CA(4) of the Act on 27 October 2020 not to revoke the cancellation of the applicant’s visa.

2. The applicant was born in, and is a national of, the Democratic Republic of the Congo (DRC). He arrived in Australia on 14 September 2010, aged 23, as the holder of a Class BC Subclass 100 Partner visa. His wife is an Australian citizen and they have seven children.

3. On 18 September 2018, the applicant was convicted in the District Court of Queensland of two counts of rape of a young girl and was sentenced to five years and six months’ imprisonment on each count, to be served concurrently. The applicant appealed the convictions but, on 29 October 2019, the Supreme Court of Queensland dismissed the appeal.

4. On 18 January 2019, a delegate of the Minister cancelled the applicant’s visa as required by s 501(3A) of the Act. It is not in dispute that the applicant did not pass the character test in s 501(3A)(a)(i) because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(c) (sentenced to a term of imprisonment of 12 months or more). The applicant was notified of this decision and was invited to make representations about the revocation of the decision to cancel his visa. The applicant made representations in response to that invitation.

5. On 27 October 2020, the Minister decided under s 501CA(4) of the Act not to revoke the cancellation of the applicant’s visa. On 9 November 2020, the applicant was notified of the decision.

6. On 30 November 2020, the applicant filed an originating application in this Court seeking review of the decision of the Minister. Section 476A(1)(c) of the Act gives the Court jurisdiction to review the decision of the Minister, and s 476A(2) stipulates that the jurisdiction is the same as the jurisdiction of the High Court under s 75(v) of the Constitution. Consistently with that limitation, the relief sought by the applicant is a writ of certiorari quashing the decision of the Minister and a writ of mandamus remitting the matter to the Minister for determination according to law.

7. On 15 February 2021, prior to the hearing, the applicant filed an amended originating application, amending his grounds of review. The Minister did not oppose a grant of leave to make the amendments and I therefore gave leave for those amendments to be made. During the hearing on 12 March 2021, the applicant sought leave to amend further his originating application to make clear that ground 3 was put on alternative bases being legal unreasonableness and a failure to afford procedural fairness. Again, the Minister did not oppose a grant of leave and I therefore gave leave. The further amended originating application containing that amendment was filed shortly after the hearing on 18 March 2021. The grounds of review are as follows:

1. The respondent failed to afford procedural fairness to the applicant, in that he failed to resolve a substantial and clearly articulated claim that the applicant is a refugee.

2. [Not pressed]

3. The respondent acted unreasonably in failing to seek out further information from the applicant and failed to afford procedural fairness in not notifying the applicant of the issues set out at paragraphs 70, 72, 74, 76, 80 and 81 of the statement of reasons for the decision.

4. The respondent failed to consider the applicant’s claims to fear harm upon any return to the Democratic Republic of Congo, independent of the context of any legal obligation of non-refoulement.

8. For the reasons that follow, I find that the Minister...