Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A

• Jurisdiction: Australia Federal only
• Judgment Date: 24 June 2020
• Neutral Citation: [2020] FCAFC 121
• Date: 24 June 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCAFC 121

Appeal from:	BFW20 by his Litigation Representative BFW20A v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 562
File numbers:	SAD 70 of 2020NSD 331 of 2020
Judges:	ALLSOP CJ, KENNY, BESANKO, MORTIMER AND MOSHINSKY JJ
Date of judgment:	24 June 2020
Date of publication of reasons:	7 July 2020
Catchwords:	MIGRATION – protection visas – whether the power in s 501 of the Migration Act 1958 (Cth) to refuse to grant a visa can apply to an application for a protection visa – whether there is an inconsistency between the criteria for a protection visa (as introduced in 2014) and the general power in s 501 to refuse to grant a visa – whether the criteria for a protection visa indicate an intention that these provisions have an exclusive operation over the subject-matter of refusal of a protection visa on character grounds – whether BAL19 v Minister for Home Affairs [2019] FCA 2189 wrongly decided
Legislation:	Constitution, s 109 Acts Interpretation Act 1901 (Cth), s 13 Acts Interpretation Amendment Act 2011 (Cth) Judiciary Act 1903 (Cth), s 39B Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5M, 35A, 36, 39A, 48A, 65, 91R, 91S, 91T, 91U, 91WA, 91WB, 197C, 198, 200, 201, 228B, 336F, 411, 476A, 500, 501, 501BA, 501F, 501H, 502, 503 Migration Amendment Act 2014 (Cth) Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) Migration Amendment (Complementary Protection) Act 2011 (Cth) Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) Migration Legislation Amendment Act (No 6) 2001 (Cth) Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) Migration Regulations 1994 (Cth), Sch 1, reg 2.07AM, Sch 2, cl 866.225 Stamp Duties Act 1923 (SA), ss 23, 24
Cases cited:	Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 BAL19 v Minister for Home Affairs [2019] FCA 2189 Brisbane City Council v Amos (2019) 93 ALJR 977 Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 David Grant & Co Pty Ltd (receiver appointed) v Westpac Banking Corporation (1995) 184 CLR 265 DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 FCS17 v Minister for Home Affairs [2020] FCAFC 68 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 Masson v Parsons (2019) 93 ALJR 848 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Home Affairs v Brown (2020) 376 ALR 133 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 NAGV v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 Ombudsman v Laughton (2005) 64 NSWLR 114 Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 Plaintiff S297/2013 v Minister for Immigration and Border Protection (No 2) (2015) 255 CLR 231 Platz v Osborne (1943) 68 CLR 133 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Kirby; Ex Parte Boilermakers’ Society of Australia (1956) 94 CLR 254 R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 Shergold v Tanner (2002) 209 CLR 126 Shuster v Minister for Immigration and Citizenship (2008) 167 FCR 186 South Australia v Tanner (1989) 166 CLR 161 Spence v Queensland (2019) 367 ALR 587 SZOQQ v Minister for Immigration and Citizenship (2013) 251 CLR 577 Thompson v Byrne (1999) 196 CLR 141 VWOK v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 135 Zheng v Cai (2009) 239 CLR 446
Date of hearing:	11 June 2020
Registry:	South Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	161
Counsel for the Appellants in SAD 70 of 2020 and for the Respondents in NSD 331 of 2020:	Mr P Herzfeld with Mr D Reynolds
Solicitor for the Appellants in SAD 70 of 2020 and for the Respondents in NSD 331 of 2020:	Australian Government Solicitor
Counsel for the Respondent in SAD 70 of 2020:	Mr CL Lenehan SC with Mr SA McDonald and Mr NA Wootton
Solicitor for the Respondent in SAD 70 of 2020:	Camatta Lempens Pty Ltd
Counsel for the Applicant in NSD 331 of 2020:	Mr I Chatterjee with Ms M Yu
Solicitor for the Applicant in NSD 331 of 2020:	Human Rights for All Pty Ltd

ORDERS

		SAD 70 of 2020
BETWEEN:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Appellant ; COMMONWEALTH OF AUSTRALIA Second Appellant
AND:	BFW20 BY HIS LITIGATION REPRESENTATIVE BFW20A Respondent

JUDGES:	ALLSOP CJ, KENNY, BESANKO, MORTIMER AND MOSHINSKY JJ
DATE OF ORDER:	24 JUNE 2020

THE COURT ORDERS THAT:

1. The appeal be allowed in part on the basis that ground 2 in the notice of appeal is upheld.

2. Paragraphs 2 and 3 of the orders made by the primary judge on 30 April 2020 be set aside.

3. The form of further orders in relation to ground 2 in the notice of appeal be the subject of submissions following...