Ibrahim v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 30 May 2019
• Neutral Citation: [2019] FCAFC 89
• Date: 30 May 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Ibrahim v Minister for Home Affairs [2019] FCAFC 89

Appeal from:	Ibrahim v Minister for Home Affairs [2018] FCA 1592
File number:	SAD 275 of 2018
Judges:	WHITE, PERRY AND CHARLESWORTH JJ
Date of judgment:	30 May 2019
Catchwords:	MIGRATION – appeal from a judgment dismissing the Appellant’s application for judicial review of a decision made under s 501BA(2) of the Migration Act 1958 (Cth) (the Act) to cancel the Appellant’s Class BC Subclass 100 Partner (Migrant) visa – whether the Assistant Minister understood s 501BA(2) as precluding him from providing the Appellant with natural justice – whether the Assistant Minister had conflated Australia’s possible international non-refoulement obligations in respect of the Appellant with the claimed protection obligations under s 36(2)(a) of the Act – whether the errors were material so as to be jurisdictional – appeal allowed.
Legislation:	Migration Act 1958 (Cth) ss 5H, 5J, 36, 47, 195A, 499, 501, 501BA, 501CA Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) Migration Regulations 1994 (Cth) cl 866.225
Cases cited:	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 BKS18 v Minister for Home Affairs [2018] FCA 1731 Buck v Bavone [1976] HCA 24;(1976) 135 CLR 110 Burgess v Assistant Minister for Home Affairs [2019] FCA 34 CRI028 v The Republic of Nauru [2018] HCA 24; (2018) 356 ALR 50 DOB18 v Minister for Home Affairs [2018] FCA 1523 Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 347 ALR 350 Greene v Assistant Minister for Home Affairs [2018] FCA 919 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] FCA 1218 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; (2018) 260 FCR 523 Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 Omar v Minister for Home Affairs [2019] FCA 279 Plaintiff M70/2011 v Minister for Immigration and Citizenship (the Malaysian Declaration Case) [2011] HCA 32; (2011) 244 CLR 144 R v MacKellar; ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461 R v Connell; Ex parte Hetton Bellbird Collieries Ltd[1944] HCA 42;(1944) 69 CLR 407 Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 Sowa v Minister for Home Affairs [2018] FCA 1999 SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 Turay v Assistant Minister for Home Affairs [2018] FCA 1487 Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22
Date of hearing:	28 February 2019
Registry:	South Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	120
Counsel for the Appellant:	Mr SA McDonald
Solicitor for the Appellant:	MSM Legal
Counsel for the Respondent:	Ms DM Forrester
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		SAD 275 of 2018
BETWEEN:	JACOB PWAMORI IBRAHIM Appellant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGES:	WHITE, PERRY AND CHARLESWORTH JJ
DATE OF ORDER:	30 May 2019

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The Orders of the Federal Court made on 24 October 2018 in SAD94/2018 be set aside.

3. A writ of certiorari be issued quashing the decision of the Assistant Minister for Home Affairs made on 26 February 2018 to cancel the Appellant’s Class BC (Subclass 100) Partner (Migrant) visa.

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

REASONS FOR JUDGMENT

THE COURT:

1. On 24 October 2018, a Judge of this Court dismissed the appellant’s application for judicial review of a decision made by the Assistant Minister for Home Affairs under s 501BA(2) of the Migration Act 1958 (Cth) (the Act) to cancel the appellant’s visa: Ibrahim v Minister for Home Affairs [2018] FCA 1592. The appellant now appeals against that decision.

Background circumstances

2. The appellant is a national of Nigeria. He came to Australia on 1 May 2008 as the holder of a Class UF Subclass 30 Partner (Provisional) visa and has been here ever since. He had also been in Australia for short periods in 2006 and 2007, but they are not material for present purposes. On 5 January 2009, the appellant was granted a Class BC Subclass 100 Partner (Migrant) visa.

3. On 17 July 2015, while the appellant was in custody serving a sentence imposed on 17 December 2014, a delegate of the Minister cancelled his visa, pursuant to s 501(3A) of the Act. We will refer to this as the “Cancellation Decision”. However, on 25 August 2016, another delegate of the Minister, acting under s 501CA(4) of the Act, revoked the Cancellation Decision (the Revocation Decision).

4. Subsequently, on 23 May 2017, the then Assistant Minister for Immigration and Border Protection set aside the Revocation Decision and cancelled the appellant’s visa. The Assistant Minister did so pursuant to s 501BA(2) of the Act.

5. On 13 October 2017, this Court made orders quashing the decision of the then Assistant Minister made on 23 May 2017: Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] FCA 1218 (Ibrahim No 2).

6. The Assistant Minister for Home Affairs then considered again the exercise of the power under s 501BA(2) to set aside the revocation of the Cancellation Decision. On 26 February 2018, he made a decision to do so and to cancel the appellant’s visa. It is that decision which is the genesis of the present appeal.

7. The Assistant Minister cancelled the appellant’s visa because he was satisfied that the appellant did not satisfy the character test (by reason of having a “substantial criminal record” as defined in s 501(6)(a) and s 501(7)(c) of the Act) and because he considered that the cancellation was in the national interest. It was common ground that the appellant does have a “substantial criminal record” as the Assistant Minister had found.

8. In the proceedings at first instance, the appellant submitted that two distinct matters meant that the Minister’s decision was affected by jurisdictional error. Both grounds rested on the principle that, as the power of a Minister to set aside a revocation order and to cancel a visa depended on the Minister being satisfied of the matters specified in s 501BA(2), his state of mind had to be formed on a correct understanding of the law and of the legal consequences of his decision. The appellant contended that the Assistant Minister had not had such a correct understanding.

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