Ezegbe v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Judge: PERRAM J
• Judgment Date: 27 February 2019
• Neutral Citation: [2019] FCA 216
• Court: Federal Court
• Date: 27 February 2019

FEDERAL COURT OF AUSTRALIA

Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216

File number:	NSD 1201 of 2018
Judge:	PERRAM J
Date of judgment:	27 February 2019
Catchwords:	MIGRATION – application for judicial review of decision of Minister for Immigration and Border Protection – where applicant serving sentence of imprisonment for serious offence – whether Minister failed to give proper consideration of legal consequence of decision – whether decision lacked logic – whether Minister failed to give proper consideration of claims of harm on return to Nigeria
Legislation:	Migration Act 1958 (Cth) ss 5M, 36, 48A, 197C, 501, 501CA, 501E ; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Cases cited:	Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1 AQM18 v Minister for Immigration and Border Protection [2018] FCA 944 Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288 Carrascalo v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 CRI026 v The Republic of Nauru [2018] HCA 19 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175
	DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576 DOB18 v Minister for Home Affairs [2018] FCA 1523 Isley v Minister for Immigration and Border Protection [2018] FCA 632 Martin v Minister for Immigration and Border Protection [2017] FCA 1 Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; 162 CLR 24 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 Minister for Immigration v Tran [2015] FCA 546; 232 FCR 540 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 SZMDS v Minister for Immigration and Citizenship [2009] FCA 210 Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
Date of hearing:	9 October 2018
Date of last submissions:	26 October 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	39
Counsel for the Applicant:	Mr AM Hochroth (Pro Bono)
Counsel for the Respondent:	Mr P Herzfeld
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 1201 of 2018
BETWEEN:	GABRIEL EZEGBE Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	27 February 2019

THE COURT ORDERS THAT:

1. The decision of the Respondent made on 25 June 2018 be quashed.

2. The Respondent determine the Applicant’s application for revocation of the decision to cancel his visa pursuant to s 501CA of the Migration Act 1958 (Cth) according to law.

3. The Respondent pay the Applicant’s costs as taxed or agreed.

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

REASONS FOR JUDGMENT

PERRAM J:

1. Mr Ezegbe is a citizen of Nigeria. He arrived in Australia from Nigeria in 2007 and, until the events the subject matter of this litigation, held a valid permanent visa. On 6 June 2013, having pleaded guilty, he was convicted of the federal offence of attempting to possess a marketable quantity of a border controlled drug, namely heroin. This was an offence against s 307.6(1) of the Criminal Code (Cth) and carried a maximum penalty of 25 years’ imprisonment. Judge Tupman of the District Court of New South Wales sentenced him to imprisonment for a term of six years with a non-parole period of four years. This sentence her Honour then backdated to the date of his arrest which was 19 October 2011. The earliest he could be released from custody was, therefore, 18 October 2015.

2. He was released on parole on that day. On 7 October 2015, shortly before that occurred, a delegate of the Minister responsible for the administration of the Migration Act 1958 (Cth) (‘the Act’) cancelled his permanent visa pursuant to s 501(3A) of the Act. The delegate was required to cancel his visa because Mr Ezegbe was, in fact, in custody and had been sentenced to a period of imprisonment in excess of 12 months which were together matters that automatically enlivened s 501(3A). The effect of the cancellation was that upon his release on parole he was immediately taken into immigration detention as a non-citizen without a visa as mandated by s 189.

3. As is required under s 501CA(3)(b) of the Act, Mr Ezegbe was then invited by the Minister to make representations as to why the automatic cancellation of his visa should be revoked. He made such representations on 17 October 2016. The Minister’s discretionary power to revoke the automatic cancellation is found in s 501CA(4). In this case, after Mr Ezegbe made representations, the Minister’s power would be enlivened only if he thought that Mr Ezegbe passed what is called the ‘character test’ (there is no controversy that he did not pass that test) or that there was ‘another reason why the original decision should be revoked’. On 17 October 2016, the Assistant Minister for Immigration and Border Protection determined not to revoke the decision. Mr Ezegbe subsequently sought judicial review of that decision. On 20 November 2017, this Court quashed the Assistant Minister’s decision and ordered that the matter be remitted for determination according to law. On remitter, on 25 June 2018, the Minister concluded that no such reason presented itself and refused to revoke the earlier cancellation decision. Mr Ezegbe now seeks to quash the Minister’s decision.

4. Part of Mr Ezegbe’s representations to the Minister included a contention that if he were to be returned to Nigeria he would be targeted by both sides of a conflict existing in that country concerned with the right of the region of Biafra to autonomous self-rule. It is that claim which generates the issues in this case.

5. Australia is subject to an obligation under Art 3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’) not to return persons to places where they may be, loosely speaking, killed or tortured. It provides:

‘Article 3

1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’

6. For the reasons given by the High Court in CRI026 v The Republic of Nauru [2018] HCA 19 at [24] per Kiefel CJ, Gageler and Nettle JJ, a similar obligation arises from Arts 2(1) and 7 of the International Covenant on Civil and Political Rights (‘ICCPR’) to which Australia has also acceded. It is not necessary to set those articles out.

7. Both sets of obligations are known as non-refoulement obligations. A significant feature of those obligations is that they are non-derogable in the sense that they do not...