LGLH v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 07 December 2021
• Neutral Citation: [2021] FCA 1529
• Court: Federal Court
• Date: 07 December 2021

Federal Court of Australia

LGLH v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1529

Review of:	LGLH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 179
File number:	VID 85 of 2021
Judgment of:	O'BRYAN J
Date of judgment:	7 December 2021
Catchwords:	MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming the decision of the Minister’s delegate refusing to revoke the cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) – whether Tribunal erred in its consideration of the expectations of the Australian community – whether Tribunal erred in its consideration of the risk to the Australian community – whether Tribunal erred in its consideration of international non-refoulement obligations – where Tribunal failed to consider clearly articulated claims of the applicant to be owed international non-refoulement obligations – where Tribunal failed to consider whether returning applicant to South Sudan would breach Australia’s international non-refoulement obligations – where Tribunal misunderstood statutory task as permitting less weight to be given to international non‑refoulement obligations on the basis that they could be “properly considered” in an application for a protection visa – application allowed
Legislation:	Migration Act 1958 (Cth) ss 476A, 477A, 499, 500(1)(ba), 501, 501CA Federal Court Rules 2011 (Cth) r 31.22 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 Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Cases cited:	Ali v Minister for Home Affairs (2020) 278 FCR 627 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Ayoub v Minister for Immigration (2015) 231 FCR 513 BCR16 v Minister for Immigration (2017) 248 FCR 456 CZW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1380 DQM18 v Minister for Home Affairs (2020) 278 FCR 529 EVK18 v Minister for Home Affairs (2020) 274 FCR 598 FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124 FYBR v Minister for Home Affairs (2019) 272 FCR 454 GBV18 v Minister for Home Affairs (2020) 274 FCR 202 Guclukol v Minister for Home Affairs (2020) 279 FCR 611 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 Kura v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1478 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Home Affairs v Omar (2019) 272 FCR 589 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration v Buadromo (2018) 267 FCR 320 Minister for Immigration v FAK19 [2021] FCAFC 153 Minister for Immigration v Maioha (2018) 267 FCR 643 Muggeridge v Minister for Immigration (2017) 255 FCR 81 Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 Nomikos Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 Raibevu v Minister for Home Affairs [2020] FCAFC 35 Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; 74 AAR 545 YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	126
Date of hearing:	25 June 2021
Counsel for the Applicant:	J Murphy (appearing pro bono)
Counsel for the First Respondent:	G Hill
Solicitor for the First Respondent:	Sparke Helmore

ORDERS

		VID 85 of 2021
BETWEEN:	LGLH Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	O'BRYAN J
DATE OF ORDER:	7 december 2021

THE COURT ORDERS THAT:

1. The applicant be given leave to file an amended originating application in the form served on the first respondent on 28 May 2021.

2. A writ of certiorari issue, directed to the second respondent, quashing the decision of the second respondent dated 10 February 2021.

3. A writ of mandamus issue, remitting the matter to the second respondent and requiring it to determine the matter in accordance with law.

4. The first respondent pay the applicant’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1. This is an application made under s 476A(1)(b) of the Migration Act 1958 (Cth) (Act) seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 February 2021.

2. The applicant was born in 1994 in Khartoum in the Republic of Sudan. He is entitled to citizenship of the Republic of South Sudan and is of Dinka ethnicity. The applicant arrived in Australia in June 2009 as the holder of a Global Special Humanitarian (Subclass 200) visa.

3. On 27 July 2015, the applicant was convicted in the County Court of Victoria for the offence of rape and a sentence of 5 years imprisonment was imposed. On the same day, the applicant was also convicted of the following offences: contravene family violence intervention order with intent to cause harm/fear (sentenced to 2 months' imprisonment, served concurrently); stalking (sentenced to 1 months' imprisonment, served concurrently); fail to answer bail (sentenced to 7 days' imprisonment, served concurrently).

4. On 29 March 2017, the applicant's visa was mandatorily cancelled by a delegate of the Minister under s 501(3A) of the Act. It is not in dispute that the applicant did not pass the character test in s 501(3A)(a)(i) because of the operation of s 501(6)(a) (substantial criminal record), on the...