FQM18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: DAVIES J
• Judgment Date: 14 August 2019
• Neutral Citation: [2019] FCA 1263
• Date: 14 August 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

FQM18 v Minister for Home Affairs [2019] FCA 1263

File number:	VID 372 of 2018
Judge:	DAVIES J
Date of judgment:	14 August 2019
Catchwords:	MIGRATION – mandatory cancellation of visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) – decision not to revoke cancellation under s 501CA(4) of the Act – whether Minister erred by conflating protection obligations under s 36 of the Act with international non‑refoulement obligations – Ibrahim v Minister for Home Affairs [2019] FCAFC 89 applied – whether public comments of Minister conveyed apprehended bias – standard applicable in Ministerial context ; PRACTICE AND PROCEDURE – application for stay pending referral of Minister to Court of Disputed Returns – application refused
Legislation:	Constitution ss 44(v), 64 Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) Migration Act 1958 (Cth) ss 36, 501(3A), 501(6)(a), 501(7)(c), 501CA(4), 501G
Cases cited:	Alley v Gillespie (2018) 92 ALJR 373; [2018] HCA 11 Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 Cassell v The Queen (2000) 201 CLR 189; [2000] HCA 8 Ibrahim v Minister for Home Affairs [2018] FCA 1592 Ibrahim v Minister for Home Affairs [2019] FCAFC 89 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; [2019] HCA 3 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 O’Sullivan v Medical Tribunal of New South Wales [2009] NSWCA 374 R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177; [1965] HCA 27 Zaburoni v Minister for Immigration and Border Protection (2017) 256 FCR 171; [2017] FCA 654 Zaburoni v Minister for Immigration and Border Protection (2017) 256 FCR 197; [2017] FCAFC 205
Date of hearing:	17 May 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Delete these rows - not required
Category:	Catchwords
Number of paragraphs:	33
Counsel for the Applicant:	Mr M Albert
Solicitor for the Applicant:	Carina Ford Immigration Lawyers
Counsel for the Respondent:	Mr P Herzfeld and Ms J Watson
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		VID 372 of 2018
BETWEEN:	FQM18 Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGE:	DAVIES J
DATE OF ORDER:	14 AUGUST 2019

THE COURT ORDERS THAT:

1. The decision of the Minister made on 7 February 2018 not to revoke the cancellation of the applicant’s visa under s 501CA of the Migration Act 1958 (Cth) be set aside and the matter remitted for determination according to law.

2. The respondent pay the applicant’s costs, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

DAVIES J:

1. The applicant has applied for judicial review of the decision of the Minister for Home Affairs under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) not to revoke the mandatory cancellation of his Global Special Humanitarian visa under s 501(3A) of the Act. The visa was cancelled because the applicant did not satisfy the character test (s 501(6)(a) and s 501(7)(c)).

2. The application for judicial review pleads four grounds:

1. The Minister of Home Affairs, Peter Dutton, (the Minister), the decision‑maker, had no power to make this decision in respect of the Applicant under s. 501CA of the Migration Act 1958 (Cth) by reason that he was not constitutionally permitted to act as a Minister for the purposes of the Act, as a result of being constitutionally ineligible to exercise the power of the Minister at the relevant time.

2. The Minister erred by not discharging his statutory task on a correct understanding of the law, namely by conflating Australia’s ‘international non‑refoulment obligations’ on the one hand with s. 36 of the Migration Act 1958 (Cth) and ‘harm outside of the concept of non‑refoulment and the international obligations framework’ on the other.

3. The Minister’s decision is vitiated by jurisdictional error by reason that there would be a reasonable apprehension of bias that the Minister did not approach the decision concerning the Applicant with an open mind, namely because of media statements he gave on 19 January 2017 referring to the Applicant and Minister’s commitment to deportations.

4. The Minister erred by failing to discharge his statutory task on a correct understanding of the law, namely by relying on it being unnecessary to determine whether non-refoulment obligations are owed to the Applicant because those obligations would be ‘fully considered’ in the course of processing the application for a protection visa, in circumstances where a future Minister deciding such an application personally would not be required to ‘fully consider’ those obligations as codified in s 36 of the Migration Act 1958 (Cth) or otherwise, especially having regard to s 36(1C).

(Errors in original.)

Grounds 2 and 4

3. Grounds 2 and 4 can be considered together as they are related.

4. The Minister provided the applicant with a written notice setting out the reasons for his decision, as required by s 501G of the Act. Those reasons relevantly included the following at paras 16–19:

International non-refoulement obligations

As part of his representations seeking revocation of the original decision to cancel his visa, [the applicant] submits that he will face harm if he returned to [redacted]. [The applicant] and a youth services case manager refer to the possibility of him being killed or forced to join a militant group and his representative has made submissions in this respect. While the youth services case manager refers variously to [redacted] and [redacted], and [the applicant] initially claimed to be a [redacted] citizen, I take these claims to refer to [redacted] and/or [redacted], since prevailing conditions in those countries, especially the latter, are much more likely to include such activities than [redacted].

I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of [the applicant] for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application.

A protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Furthermore, I am aware that my Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including the character-related criteria. To reinforce this practice, I have given a direction under s499 of the Act (Direction 75) which, among other things, requires that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria or referring the application for consideration under s501. I am therefore confident that [the applicant] would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.

I have also considered [the applicant’s] claims of harm...