GBV18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 29 July 2019
• Neutral Citation: [2019] FCA 1132
• Court: Federal Court
• Date: 29 July 2019

FEDERAL COURT OF AUSTRALIA

GBV18 v Minister for Home Affairs [2019] FCA 1132

File number(s):	VID 1524 of 2018
Judge(s):	ANDERSON J
Date of judgment:	29 July 2019
Catchwords:	MIGRATION – application for judicial review of exercise of power by Administrative Appeals Tribunal (Tribunal) under s 501CA(4) of the Migration Act 1958 (Cth) – where Tribunal decided not to revoke cancellation of applicant’s visa – whether Tribunal failed to consider whether applicant would be owed complementary protection and, if so, whether the existence of such obligations was a “reason” for revocation – whether the Tribunal failed to carry out its statutory task by misunderstanding the scope of Australia’s non-refoulement obligations or otherwise engaged in irrational reasoning – whether the Tribunal failed to consider findings in UN report – whether the Tribunal failed to carry out its statutory task by stating that, in the event the applicant applied for a protection visa, his protection claims “must be comprehensively assessed” – consideration of Direction No. 65 – consideration of Direction No. 75 – consideration of the extent to which, and the manner in which, a decision-maker under s 501CA(4) is to consider Australia’s non-refoulement obligations ; Held: application for judicial review dismissed – Tribunal’s reasons did not evidence irrational reasoning nor a failure of the Tribunal to adequately consider the claims and representations put to it by the applicant – Tribunal did not fail to carry out its statutory task
Legislation:	Migration Act 1958 (Cth) ss 5, 5H, 5J, 36(1C), 36(2)(a), 36(2)(aa), 36(2A), 36(2B)(c), 36(2C)(b), 47, 65, 65(1)(a), 65(1)(a)(i), 430(1), 476(1)(c), 477A(1), 499, 499(2A), 501, 501(2), 501(3A), 501(3A)(a)(i), 501(3A)(b), 501(7)(c), 501BA(2), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(ii), 501E, 501E(1), 501E(2), 501E(2)(a) Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) Migration Regulations 1994 (Cth) cl 866.226 of sch 2 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) Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976) Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Cases cited:	AFY18 v Minister for Home Affairs [2018] FCA 1566 Ali v Minister for Immigration and Border Protection [2018] FCA 650 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 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 BKS18 v Minister for Home Affairs [2018] FCA 1731 BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104 BUD17 v Minister for Home Affairs [2018] FCAFC 140 DOB18 v Minister for Home Affairs [2018] FCA 1523 DOB18 v Minister for Home Affairs [2019] FCAFC 63 Ezegbe v Minister For Immigration and Border Protection [2019] FCA 216 FAF18 v Minister for Immigration and Border Protection [2018] FCA 1474 FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555 Flores v Minister for Home Affairs [2019] FCA 1043 Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 538 Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 Greene v Assistant Minister For Home Affairs [2018] FCA 919 Hamidy v Minister for Immigration and Border Protection [2019] FCA 221 Ibrahim v Minister for Home Affairs [2019] FCAFC 89 Luy v Minister for Immigration and Border Protection [2015] FCA 405 Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548 Minister for Home Affairs v Buadromo [2018] FCAFC 151; 362 ALR 48 Minister for Home Affairs v HSKJ [2018] FCAFC 217; 363 ALR 325 Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 362 ALR 9 Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198 Minister for Immigration and Border Protection v Le [2016] FCAFC 120; 244 FCR 56 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Nathanson and Minister for Home Affairs (Migration) [2019] AATA 642 NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 Omar v Minister for Home Affairs [2019] FCA 279 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; 2 ALD 634 Sowa v Minister for Home Affairs [2018] FCA 1999 Sowa v Minister for Home Affairs [2019] FCAFC 111 Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 Turay v Assistant Minister for Home Affairs [2018] FCA 1487 Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22
Date of hearing:	6 June 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	185
Counsel for the Applicant:	Mr N M Wood
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the First Respondent:	Mr G A Hill
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

Table of Corrections
30 July 2019	In the heading immediately preceding paragraph 54, “501(CA)(4)” has been replaced with “501CA(4)”.
30 July 2019	In paragraph 95,...