FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judge: CHARLESWORTH J
• Judgment Date: 07 August 2020
• Neutral Citation: [2020] FCA 1124
• Date: 07 August 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124

Review of:	QDWQ v Minister for Home Affairs [2019] AATA 4622
File number:	SAD 279 of 2019
Judge:	CHARLESWORTH J
Date of judgment:	7 August 2020
Catchwords:	MIGRATION – application for judicial review of a migration decision of the Administrative Appeals Tribunal made in the exercise of its powers of review under s 500 of the Migration Act 1958 (Cth) – where applicant’s visa cancelled in the mandatory exercise of the power confirmed by s 501(3A) of the Act – where a delegate of the respondent refused to revoke the cancellation decision under s 501CA(4) of the Act – where the Tribunal affirmed the delegate’s decision – whether the Tribunal failed to engage with the reasons advanced by the applicant as to why the cancellation decision should be revoked – whether Tribunal failed to consider the applicant’s submission that he was a person in respect of whom Australia owed non-refoulement obligations under international law – whether Tribunal erred by giving less weight to Australia’s international law obligations because of an erroneous assumption that the existence of the obligations would be more fully explored if and when the applicant applied for a protection visa – whether Tribunal failed to comply with a direction issued under s 499 of the Act – whether the Tribunal failed to give genuine consideration to the applicant’s written statement as to his prospects of rehabilitation
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) ss 42, 43 Migration Act 1958 (Cth) ss 5, 14, 35A, 36, 45, 65, 79, 189, 197C, 198, 474, 476A, 499, 500, 501, 501(3A), 501BA, 501CA
Cases cited:	Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 557 Ali v Minister for Home Affairs [2019] FCA 1900 Ali v Minister for Home Affairs [2020] FCAFC 109 ; Ali v Minister for Immigration and Border Protection [2018] FCA 650 BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 BDQ19 v Minister for Home Affairs (2019) 167 ALD 38 DGI19 v Minister for Home Affairs [2019] FCA 1867 DOB18 v Minister for Home Affairs (2019) 269 FCR 636 DQM18 v Minister for Home Affairs [2020] FCAFC 110 Drake v Minister for Immigration and Ethic Affairs (1979) 2 ALD 60 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 GBV18 v Minister for Home Affairs [2020] FCAFC 17 Goundar v Minister for Immigration and Border Protection (2016) 160 ALD 123 Hernandez v Minister for Home Affairs [2020] FCA 415 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Omar v Minister for Home Affairs [2019] FCA 279 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 Sowa v Minister for Home Affairs [2019] FCAFC 111; 369 ALR 389 Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22
Date of hearing:	5 June 2020
Date of last submissions:	20 July 2020 First Respondent 22 July 2020 Applicant
Registry:	South Australia
Division:	General DivisionN/A
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	76
Counsel for the Applicant:	Mr S McDonald
Solicitor for the Applicant:	MSM Legal
Counsel for the First Respondent:	Mr Hill
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a Submitting Notice

Table of Corrections
18 August 2020	Paragraph 11 line one, “Section 501CA(3) relevant provides:” replaced with “Section 501CA(3) and (4) relevantly provides:”
	Paragraph 17 line seven, “appeal” replaced with “review”
	Paragraph 20 line two of quote 10.1 “type of ham” replaced with “type of harm”
	Paragraph 24 line four, “(Ali at first instance)” deleted, line five, full citation for Ali v Minister for Immigration and Border Protection [2018] FCA 650 inserted, “at first instance” deleted
	Paragraph 34 line two, “Flick J in Ali at first instance” deleted, replaced with “Steward J in Ali v Minister for Home Affairs [2019] FCA 1900 (Ali at first instance), which also concerned the exercise of the power conferred by s 501CA(4)”
	Paragraph 73 line two, “by the Tribunal has having been” replaced with “by the Tribunal as having been”
	Paragraph 75 line three, “to have have rejected them.” replaced with “to have rejected them.”

ORDERS

		SAD 279 of 2019
BETWEEN:	FAK19 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	CHARLESWORTH J
DATE OF ORDER:	7 AUGUST 2020

THE COURT ORDERS THAT:

1. The decision of the second respondent made on 12 November 2019 affirming the decision of the first respondent not to revoke the cancellation of the applicant’s Class BB Subclass 155 Five Year Resident Return visa is quashed.

2. The first respondent, whether by his officers, servants, agents or delegates be restrained from acting on the basis that the decision of the second respondent made on 12 November 2019 was a valid decision.

3. The second respondent, differently constituted is to determine the applicant’s application for review under s 500 of the Migration Act 1958 (Cth) in accordance with the law.

4. The first respondent is to pay the applicant’s costs of the originating application.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made in the exercise of its powers of review under s 500(1)(ba) of the Migration Act 1958 (Cth).

2. The applicant is a national of Afghanistan. He is a Shi’a Muslim of Hazara ethnicity. He migrated to Australia in 2011 as the holder of a Special Humanitarian Program (subclass 202) visa. He was then 21 years old. The applicant was granted a Class BB subclass 155 Five Year Resident Return visa when his previous visa expired.

3. Since arriving in Australia the applicant has committed a number of serious offences of violence against his wife and his sister, most recently in January 2014. He was convicted of those offences in...