GBV18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 25 February 2020
• Neutral Citation: [2020] FCAFC 17
• Date: 25 February 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

GBV18 v Minister for Home Affairs [2020] FCAFC 17

Appeal from:	GBV18 v Minister for Home Affairs [2019] FCA 1132
File number:	VID 913 of 2019
Judges:	FLICK, GRIFFITHS AND MOSHINSKY JJ
Date of judgment:	25 February 2020
Catchwords:	MIGRATION – request for revocation of mandatory visa cancellation under s 501CA(4) of the Migration Act 1958 (Cth) – where the appellant claimed risk of harm by way of physical violence if he were returned to his country of origin – whether primary judge erred in not finding that the Administrative Appeals Tribunal had failed to address and/or meaningfully engage with the appellant’s claim regarding risk of harm – appeal allowed with costs
Legislation:	Migration Act 1958 (Cth), ss 5, 36, 501, 501CA, 501E
Cases cited:	AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205 Ali v Minister for Immigration and Border Protection [2018] FCA 650 BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 DOB18 v Minister for Home Affairs [2018] FCA 1523 DOB18 v Minister for Home Affairs [2019] FCAFC 63 GBV18 v Minister for Home Affairs [2019] FCA 1132 Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 Greene v Assistant Minister for Home Affairs [2018] FCA 919 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 260 FCR 523 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 Navoto v Minister for Home Affairs [2019] FCAFC 135 SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986 Tickner v Chapman [1995] FCA 1726; 57 FCR 451 Turay v Assistant Minister for Home Affairs [2018] FCA 1487 Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 561
Date of hearing:	10 February 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	48
Counsel for the Appellant:	N Wood
Solicitor for the Appellant:	Victoria Legal Aid
Counsel for the First Respondent:	G Hill
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice, save as to costs

ORDERS

		VID 913 of 2019
BETWEEN:	GBV18 Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES:	FLICK, GRIFFITHS AND MOSHINSKY JJ
DATE OF ORDER:	25 FEBRUARY 2020

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the Court dated 29 July 2019 be set aside.

3. The decision dated 31 October 2018 of the Administrative Appeals Tribunal be set aside.

4. The application for review be remitted to the Administrative Appeals Tribunal for reconsideration according to law.

5. The first respondent to pay the appellant’s cost of the proceeding below as well as of the appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. The appellant appeals from the whole of the judgment of a Judge of the Court, which is reported as GBV18 v Minister for Home Affairs [2019] FCA 1132. The primary judge dismissed the appellant’s application for judicial review of a decision dated 31 October 2018 of the Administrative Appeals Tribunal (AAT). The AAT affirmed a Ministerial delegate’s decision under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the mandatory cancellation of the appellant’s visa.

2. The key issues raised by the notice of appeal are as follows:

1. Whether the primary judge erred in not finding that the AAT had fallen into jurisdictional error because it failed to consider the appellant’s representations and evidence in support of revocation by reference to the more generalised protection under the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (grounds 1 and 2).

2. Whether the primary judge erred in not holding that the AAT had made a jurisdictional error by failing to consider various matters (including evidence), raised by the appellant in his representations made under s 501CA(3) as providing a reason for revoking the visa cancellation decision, irrespective of whether these matters engaged any of Australia’s non-refoulement obligations (ground 3).

3. Whether the primary judge erred in finding that the AAT did not fail to carry out its statutory task by misunderstanding the Act or its operation, with particular reference to the AAT’s reasoning at [127] of its reasons for decision where it said that, in the event that the appellant applied for a protection visa, his non-refoulement claims “must be comprehensively assessed”. This ground raises the issue of whether Direction No. 75 reversed the effect of BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 (ground 4).

3. For reasons which will shortly emerge, it is unnecessary to determine grounds 1, 2 and 4 because the appeal should be allowed on the basis of ground 3. In broad terms, this is consistent with the approach taken recently by the Full Court in Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569. It should be emphasised that the primary judge here did not have the benefit of the Full Court’s reasons for judgment in Omar when his Honour delivered his reasons for judgment in this matter on 29 July 2019.

Summary of background facts

4. The appellant is a national of South Sudan. He arrived in Australia on 15 December 2004 at the age of 12 holding a visa issued under Australia’s “Special Humanitarian Programme”. Before he came to Australia, the appellant lived for many years in several camps for internally-displaced people in South Sudan and then in a refugee camp in Kenya. He is now 28 years old.

5. The appellant’s visa was cancelled on 28 November 2016 under s 501(3A) of the Act. The appellant does not dispute that he has a substantial criminal record within the meaning of the relevant statutory provisions. On 7 December 2016, the appellant asked that the visa cancellation decision be revoked. Over approximately the next 12 month period, various submissions were made on the appellant’s behalf by two different legal representatives, who also provided material in support of his revocation request. We will elaborate upon the relevant parts of this...