Hernandez v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: CHARLESWORTH J
• Judgment Date: 31 March 2020
• Neutral Citation: [2020] FCA 415
• Date: 31 March 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Hernandez v Minister for Home Affairs [2020] FCA 415

File number:	SAD 211 of 2018
Judge:	CHARLESWORTH J
Date of judgment:	31 March 2020
Catchwords:	MIGRATION – mandatory cancellation of visa on character grounds –– non-citizen making representations to Minister for Home Affairs as to why cancellation decision should be revoked – non-citizen claiming to fear harm of kidnap for ransom and murder if returned to El Salvador – whether Minister failed to consider non-citizen’s claims – whether Minister failed to determine whether the non-citizen was a person to whom non-refoulement obligations were owed – whether failure to consider constituted jurisdictional error
Legislation:	Migration Act 1958 (Cth) ss 5, 5M, 14, 36, 45, 47, 65, 189, 196, 197C, 198, 199, 200, 474, 499, 501, 501CA, 501E Migration Regulations 1994 (Cth) cl 866.225; Schs 2, 4
Cases cited:	DOB18 v Minister for Home Affairs [2019] FCAFC 63 Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Ibrahim v Minister for Home Affairs [2019] FCAFC 89 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151 Viane v Minister for Immigration and Border Protection (2018) 263 FCR 56
Date of hearing:	12 December 2019
Registry:	South Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	68
Counsel for the Applicant:	Mr McDonald
Solicitor for the Applicant:	Cifuentes Law
Counsel for the Respondent:	Ms C Symonds
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		SAD 211 of 2018
BETWEEN:	JOSE RAUL HERNANDEZ Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGE:	CHARLESWORTH J
DATE OF ORDER:	31 MARCH 2020

THE COURT ORDERS THAT:

1. The application is allowed.

2. A writ of certiorari issue quashing the decision of the respondent made on 14 February 2018 not to revoke the cancellation of the applicant’s Class BB (Subclass 155) Five Year Resident Return visa.

3. A writ of Mandamus issue compelling the respondent to exercise the power conferred by s 501CA(4) of the Migration Act 1958 (Cth) in relation to the applicant in accordance with the law.

4. The respondent is to pay the applicant’s costs of the application, as agreed or assessed.

5. The time to commence an appeal from the orders in paragraphs 1, 2 and 3 be extended so as to expire on 30 June 2020.

6. The parties have liberty to apply to:

   1. vary or revoke the order in paragraph 4, such liberty to be exercised within seven days; and/or

   2. further extend the period specified in paragraph 5, such liberty to be exercised on or before 14 June 2020.

7. Any application made in accordance with the order in paragraph 6 is to be determined on the papers.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1. This is an application for judicial review of a decision made by the Minister for Home Affairs under s 501CA(4) of the Migration Act 1958 (Cth).

2. The applicant, Jose Raul Hernandez, is a 71 year old citizen of El Salvador. He arrived in Australia in 1991 as the holder of a Class BB Subclass 155 Five Year Resident Return visa issued under the Act. He was then aged 43. Mr Hernandez has been convicted of serious criminal offences, including sexual offences against a child. He has a “substantial criminal record” within the meaning of s 501(7) of the Act and so cannot pass the character test prescribed in s 501(6).

3. On 8 July 2015, a delegate of the Minister cancelled Mr Hernandez’s visa. That decision was mandated by s 501(3A) of the Act, the delegate not being satisfied that Mr Hernandez passed the character test.

4. In response to an invitation under s 501CA(3), Mr Hernandez made representations to the Minister advancing reasons why the cancellation decision should be revoked. The Minister refused to revoke the cancellation decision in the personal exercise of the power conferred by s 501CA(4) of the Act. That decision now forms the subject of this application for judicial review.

5. The application should be allowed for the reasons given below.

THE COURT’S TASK

6. This Court’s power to review the Minister’s decision is limited to review for jurisdictional error: Act, s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. As Kiefel CJ, Gageler and Keane JJ explained in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [23]:

Jurisdiction, in the most generic sense in which it has come to be used in this field of discourse, refers to the scope of the authority that is conferred on a repository. In its application to judicial review of administrative action the taking of which is authorised by statute, it refers to the scope of the authority which a statute confers on a decision-maker to make a decision of a kind to which the statute then attaches legal consequences. It encompasses in that application all of the preconditions which the statute requires to exist in order for the decision-maker to embark on the decision-making process. It also encompasses all of the conditions which the statute expressly or impliedly requires to be observed in or in relation to the decision-making process in order for the decision-maker to make a decision of that kind. A decision made within jurisdiction is a decision which sufficiently complies with those statutory preconditions and conditions to have ‘such force and effect as is given to it by the law pursuant to which it was made’.

(footnote omitted).

7. The majority said that “jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error” (at [25]), and:

27 Just as identification of the preconditions to and conditions of an exercise of decision-making power conferred by statute turns on the construction of the statute, so too does discernment of the extent of non-compliance which will result in an otherwise compliant decision lacking the characteristics necessary to be given force and effect by the statute turn on the construction of the statute. The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute.

…

29 That a decision-maker ‘must proceed by reference to correct legal principles, correctly applied’ is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.

(footnotes omitted)

8. A failure to comply with a condition attending the exercise...