Hamidy v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Judge: MURPHY J
• Judgment Date: 27 February 2019
• Neutral Citation: [2019] FCA 221
• Court: Federal Court
• Date: 27 February 2019

FEDERAL COURT OF AUSTRALIA

Hamidy v Minister for Immigration and Border Protection [2019] FCA 221

File number:	VID 679 of 2017
Judge:	MURPHY J
Date of judgment:	27 February 2019
Catchwords:	MIGRATION – visa cancellation decision pursuant to s 501(3) of the Migration Act 1958 (Cth) - where the Minister stated, in his reasons for decision, that it was unnecessary to determine whether non-refoulement obligations were owed to the applicant – applying the decision in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 86 – Minister’s decision affected by jurisdictional error – whether relief should be refused in the exercise of discretion – where since the visa cancellation decision a delegate of the Minister had considered and rejected the applicant’s protection claims – held, the applicant entitled to the relief sought
Legislation:	Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) Crimes Act 1958 (Vic)
Cases cited:	BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; [2017] FCAFC 96 Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107; [1997] FCA 729 DOB18 v Minister for Home Affairs [2018] FCA 1523 Giretti v Federal Commissioner of Taxation (1996) 70 FCR 151 Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780; [2018] HCA 34 Kabir v Minister for Immigration and Citizenship [2010] FCA 1164 Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181; [2007] FCAFC 62 Minister for Immigration and Border Protection v BHA17 (2018) 362 ALR 9; [2018] FCAFC 68 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
Date of hearing:	11 October 2018
Date of last submissions:	2 November 2018
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	64
Counsel for the Applicant:	Mr N M Wood
Solicitor for the Applicant:	Clothier Anderson & Associates
Counsel for the Respondent:	Mr G A Hill
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		VID 679 of 2017
BETWEEN:	KAZ HAMIDY Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE:	MURPHY J
DATE OF ORDER:	27 February 2019

THE COURT ORDERS THAT:

1. The Respondent’s decision of 18 May 2017 to cancel the Applicant’s Refugee and Humanitarian (Migrant) (Class BA) (Subclass 200) visa be quashed.

2. The Respondent pay the Applicant’s costs.

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

REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

1. In this proceeding the applicant, Mr Kaz Hamidy, seeks judicial review of a decision of the respondent, the Minister for Immigration and Border Protection, acting personally, to cancel Mr Hamidy’s Refugee and Humanitarian (Migrant) (Class BA) (Subclass 200) visa (refugee visa). The Minister decided to cancel Mr Hamidy’s visa under s 501(3) of the Migration Act 1958 (Cth) (the Act), on the basis that he reasonably suspected that Mr Hamidy has a “substantial criminal record” (as defined) and therefore did not pass the “character test” under the Act, and was satisfied that cancellation of Mr Hamidy’s visa was in the national interest.

2. Mr Hamidy was born in Iraq and came to Australia on 21 July 1998 on a refugee visa. He has a lengthy history of criminal offending, which began in 2001, three years after arriving in Australia. On 5 August 2011 he was sentenced to a total of 30 months’ imprisonment on charges of false imprisonment and common-law assault. He therefore has a substantial criminal record within the meaning of subs 501(6)(a) and (7)(c) of the Act, having been convicted and sentenced to a term of imprisonment of 12 months or more.

3. It is plain enough that, having regard to Mr Hamidy’s substantial criminal record and history of criminal offending, a decision to cancel his refugee visa may be open to a reasonable decision-maker, but the Minister must proceed according to a correct understanding of the Act and make any such decision according to law. In my view the Minister did not do so.

4. In summary the Minister recognised that Mr Hamidy made claims that may give rise to international non-refoulement obligations, but considered it unnecessary to decide whether Australia owed such obligations. The Minister erroneously considered that Mr Hamidy’s protection claims would necessarily be considered if he made an application for a protection visa. The Minister accepts this was an error and I consider the error to be jurisdictional.

5. The Minister’s primary argument is that the Court should exercise its discretion to withhold relief essentially because, following cancellation of Mr Hamidy’s refugee visa, he applied for a protection visa and a delegate of the Minister has assessed and rejected his protection claims. Mr Hamidy has however applied to the Administrative Appeals Tribunal (the Tribunal) for review of that decision and the Tribunal must conduct a de novo hearing. For the reasons I explain I am not persuaded that it is appropriate to withhold relief in the circumstances of the case and I consider the Minister’s decision must be quashed.

SECTION 501(3) OF THE ACT

6. Section 501(3) confers a discretionary power on the Minister to cancel a person’s visa if the Minister reasonably suspects the person does not pass the “character test” in subs (6) and the Minister is satisfied that cancellation is in the national interest. Section 501(6)(a) provides that a person does not pass the character test if “the person has a “substantial criminal record” (as defined by subsection (7))”. Section 501(7)(c) provides that for the purposes of the character test a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more”.

THE FACTS Mr Hamidy’s history of criminal offending

7. Having been found by the UNHCR to be a refugee, Mr Hamidy was granted a refugee visa and he arrived in Australia on 21 July 1998. The evidence discloses that he has a lengthy history of criminal offending beginning in 2001, including convictions for offences involving assault, assault with a weapon, armed robbery, reckless conduct endangering serious injury, recklessly causing injury and intentionally causing injury, dishonesty, drug offences, multiple driving offences and multiple breaches of judicial orders. I will not set out the full history of Mr Hamidy’s criminal conduct and it suffices to note...