EXT20 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 05 May 2022
• Neutral Citation: [2022] FCAFC 72
• Date: 05 May 2022
• Court: Full Federal Court (Australia)

Federal Court of Australia

EXT20 v Minister for Home Affairs [2022] FCAFC 72

Appeal from:
File number(s):	VID 370 of 2021
Judgment of:	MORTIMER, WIGNEY AND SNADEN JJ
Date of judgment:	5 May 2022
Catchwords:	MIGRATION – appeal – refusal to revoke mandatory cancellation of appellant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) – where appellant made representations about risk of harm if returned to country of nationality – representations made within the prescribed period but after receipt of a notice under s 501CA(3) that misrepresented the prescribed period – where Minister concluded that he was unable to make a finding about the appellant’s claim to fear harm due to a lack of detail and supporting evidence – whether primary judge erred in not finding that failure to consider the appellant’s claims was a breach of procedural fairness – whether primary judge erred in not finding that failure to notify appellant of the lack of detail and supporting evidence was a breach of procedural fairness – whether erroneous invitation for representations meant that Minister lacked power to refuse to revoke the mandatory cancellation decision – appeal dismissed
Legislation:	Migration Act 1958 (Cth), ss 501, 501CA(3), 501CA(4) Migration Regulations 1994 (Cth), reg 2.52(2)(b)
Cases cited:	Abebe v The Commonwealth [1999] HCA 14; 197 CLR 510 Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 BCE20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 124 BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91; 285 FCR 43 CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155; 272 FCR 131 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 CHVS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 34 Commissioner of ACT Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 Downes v Minister for Home Affairs [2020] FCA 54; 168 ALD 498 EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173; 395 ALR 36 EVK18 v Minister for Home Affairs [2020] FCAFC 49; 274 FCR 598 Guclukol v Minister for Home Affairs [2020] FCAFC 148; 279 FCR 611 Kioa v West [1985] HCA 81; 159 CLR 550 Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 Minister for Home Affairs v Smith [2019] FCAFC 137 Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 338 ALR 351 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Minister for Immigration v Maioha [2018] FCAFC 216; 267 FCR 643 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; 280 FCR 178 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Jokic [2020] FCA 1434 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EPL20; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Sillars [2022] HCASL 9 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46; 284 FCR 62 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 Muin v Refugee Review Tribunal [2002] HCA 30 76 ALJR 966 Nahi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1169 Navoto v Minister for Home Affairs [2019] FCAFC 135 Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28; 219 FCR 504 Pennie v Minister for Home Affairs [2019] FCAFC 129 Perera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 403 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; 216 CLR 212 Renton v Minister for Home Affairs [2021] FCA 931 RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 Sami v Minister for Immigration and Citizenship [2013] FCAFC 128 Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174 Snedden v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156; 230 FCR 82 STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 251 Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; 281 FCR 578 Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174; 265 FCR 177 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 Tewao v Minister for Immigration and Citizenship [2012] FCAFC 39
Division:
Registry:
National Practice Area:
Number of paragraphs:	189
Date of hearing:	11 November 2021
Counsel for the Appellant:	Ms L De Ferrari SC with Mr A Aleksov
Solicitor for the Appellant:	Carina Ford Immigration Lawyers
Counsel for the Respondent:	Mr G Hill SC
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		VID 370 of 2021
BETWEEN:	EXT20 Appellant
AND:	MINISTER FOR HOME AFFAIRS Respondent

order made by:	MORTIMER, WIGNEY AND SNADEN JJ
DATE OF ORDER:	5 May 2022

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

MORTIMER J:

1. This appeal concerns a decision of the Minister of Home Affairs not to revoke the mandatory cancellation of the appellant’s visa. The appellant made representations about, amongst other matters, the harm he feared if he were to return to his country of nationality. These representations were made within the time prescribed by the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth), despite the appellant receiving a notice from the Minister’s department that miscalculated how much time the appellant had.

2. The primary judge dismissed the appellant’s judicial review application in respect of the non-revocation decision. On appeal, the appellant submitted the primary judge should have found the Minister did not afford him procedural fairness, by not considering the appellant’s claim to be a refugee, alternatively by not...