FYBR v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: PERRY J
• Judgment Date: 11 April 2019
• Neutral Citation: [2019] FCA 500
• Date: 11 April 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

FYBR v Minister for Home Affairs [2019] FCA 500

Review of:	Application for Judicial Review: FYBR and Minister for Home Affairs (Migration) [2018] AATA 4281
File number:	NSD 2350 of 2018
Judge:	PERRY J
Date of judgment:	11 April 2019
Catchwords:	MIGRATION – application for review of decision by Administrative Appeals Tribunal to refuse to grant a Safe Haven Visa on character grounds under s 501 – proper construction of cl 11.3 of Direction No. 65: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA pursuant to which the Tribunal must have regard to the expectations of the Australian community as a “primary consideration” – whether Tribunal erred in treating cl 11.3 as deeming what community expectations are or whether it is permissible for the Tribunal to reach a view on community expectations by reference to an applicant’s circumstances – whether decision in Oluwafemi v Minister for Home Affairs [2018] FCA 1389 is plainly wrong – application dismissed
Legislation:	Migration Act 1958 (Cth) s 477A
Cases cited:	Afu v Minister for Home Affairs [2018] FCA 1311 Garrett v Federal Commissioner of Taxation [2015] FCA 665; (2015) 233 FCR 226 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 Metera v Administrative Appeals Tribunal [2008] FCA 1627; (2008) 105 ALD 18 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 MZYYO v Minister for Immigration and Citizenship [2013] FCA 49; (2013) 214 FCR 68 Nigam v Minister for Immigration and Border Protection [2017] FCAFC 127; (2017) 254 FCR 295 Oluwafemi v Minister for Home Affairs [2018] FCA 1389 YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Date of hearing:	4 April 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Delete these rows - not required
Category:	Catchwords
Number of paragraphs:	43
Counsel for the Applicant:	Mr D Godwin
Solicitor for the Applicant:	Teleo Immigration Lawyers
Counsel for the First Respondent:	Mr C Lenehan
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The second respondent filed a submitting notice

ORDERS

		NSD 2350 of 2018
BETWEEN:	FYBR Applicant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	PERRY J
DATE OF ORDER:	11 April 2019

THE COURT ORDERS THAT:

1. The application for an extension of time is granted.

2. The application for judicial review is dismissed.

3. The applicant is to pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1. INTRODUCTION	[1]
2. BACKGROUND	[5]
3. THE APPLICATION FOR AN EXTENSION OF TIME	[15]
4. THE APPLICATION FOR JUDICIAL REVIEW	[19]
4.1 The Tribunal’s reasoning with respect to clause 11.3 of Direction 65	[19]
4.2 The applicant’s submissions	[21]
4.3 Is the decision in Oluwafemi plainly wrong?	[23]
5. CONCLUSION	[43]

1. INTRODUCTION

1. This is an application under s 477A(2) of the Migration Act 1958 (Cth) (the Act) for an extension of time within which to commence proceedings for judicial review in the original jurisdiction of the Federal Court of Australia pursuant to s 476A of the Act. The 35 day period set by s 477A(1) for filing the application without leave of the Court expired on 10 December 2018.

2. The draft amended application filed on 20 March 2019 (the amended application) replaces the earlier proposed application and identifies two related grounds of review:

1. The Tribunal failed to comply with s 499(2A) of the Migration Act 1958 in that it did not comply with clause 8.3 of Direction 65 in relation to the primary consideration “expectations of the Australian Community”, because it accepted that the primary consideration operated as a kind of deeming provision.

2. The Tribunal failed to complete the exercise of its jurisdiction as it did not have regard to all the circumstances of the case in assessing “expectations of the Australian Community”.

3. Both grounds ultimately raise the same question as to the proper construction of cl 11.3 of Direction No. 65: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65) pursuant to which the Tribunal must have regard to the expectations of the Australian community as a “primary consideration” in making its decision. Direction 65 was made pursuant to s 499(1) of the Act. That section provides that the Minister for Home Affairs (the Minister) may give written directions to a person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers, provided that the directions are not inconsistent with the Act or the regulations. It was common ground that, by virtue of s 499(2A), the Administrative Appeals Tribunal (the Tribunal) was required to comply with Direction 65.

4. For the reasons set out below, the application for an extension of time should be allowed but the application refused with costs.

2. BACKGROUND

5. As the matters in issue are narrow, the background facts can be briefly summarised as follows.

6. The applicant is a citizen of Afghanistan. Following an exercise of the power by the Minister under s 46A of the Act to allow the applicant to apply for a protection visa, the applicant was granted a Bridging E (Class WE) visa. The applicant’s bridging visa was cancelled under s 116 of the Act and he was placed in a correctional facility. In March 2016 the applicant pleaded guilty in the Local Court of New South Wales to the offences of common assault, procure child for unlawful sexual activity, and two counts of stalking or intimidation with intent to cause fear of physical or mental harm. The applicant was convicted and sentenced to 2 years’ imprisonment with a non-parole period of 18 months. On appeal, the sentence was reduced to an aggregate head sentence of 12 months’ imprisonment with an aggregate non-parole period of 7 months. Upon the applicant’s release from criminal detention on expiry of the non-parole period, the applicant was immediately detained under s 189(1) of the Act and placed into immigration detention where he currently remains.

7. On 7 September 2016, the Minister again exercised the power under s 46A of the Act to allow the applicant to lodge an application for a Safe Haven (Enterprise) visa (SHEV). The applicant lodged his application on 28 April 2017 on...