Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19

• Jurisdiction: Australia Federal only
• Judgment Date: 01 October 2020
• Neutral Citation: [2020] FCAFC 166
• Date: 01 October 2020
• Court: Full Federal Court (Australia)

Federal Court of Australia

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166

Appeal from:	CTB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2128
File number:	NSD 117 of 2020
Judgment of:	MCKERRACHER, KERR AND WIGNEY JJ
Date of judgment:	1 October 2020
Catchwords:	MIGRATION – request for revocation of mandatory visa cancellation under s 501CA(4) of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal engaged in an active intellectual process with the respondent’s representation that he would be harmed or killed on account of his ethnicity, religious beliefs and family history if returned to his country of origin – where the Tribunal held that the representations weighted ‘to a greater or lesser extent’ in the respondent’s favour – in circumstances where the Tribunal recognised that it was open to the respondent to apply for a protection visa
Legislation:	Migration Act 1958 (Cth) ss 36(2), 65(1), 501, 501(3A), 501CA(4), 501CA(4)(b), 501CA(4)(b)(ii), 501E(2)(a)
Cases cited:	Abebe v Commonwealth(1999) 197 CLR 510; [1999] HCA 14 Ali v Minister for Home Affairs [2018] FCA 650 Ali v Minister for Home Affairs [2020] FCAFC 109 AXT19 v Minister for Home Affairs [2020] FCAFC 32 Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513; [2015] FCAFC 83 BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; [2017] FCAFC 96 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 DOB18 v Minister for Home Affairs(2019) 269 FCR 636; [2019] FCAFC 63 DQM18 v Minister for Home Affairs [2020] FCAFC 110 EVK18 v Minister for Home Affairs [2020] FCAFC 49 GBV18 v Minister for Home Affairs [2020] FCAFC 17 Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 Guclukol v Minister for Home Affairs [2020] FCA 61 Minister for Home Affairs v Buadromo (2018) 267 FCR 320; [2018] FCAFC 151 Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643; [2018] FCAFC 216 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 Tickner v Chapman(1995) 57 FCR 451; [1995] FCA 1726
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	46
Date of hearing:	17 August 2020
Counsel for the Appellant:	Mr G Kennett SC with Mr B Kaplan
Solicitor for the Appellant:	Sparke Helmore
Counsel for the First Respondent:	Ms T Baw with Mr DJ McDonald-Norman (Pro Bono)
Counsel for the Second Respondent:	The Second Respondent submits to any order of the Court, save as to the question of costs

ORDERS

		NSD 117 of 2020
BETWEEN:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Appellant
AND:	CTB19 First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	MCKERRACHER, KERR AND WIGNEY JJ
DATE OF ORDER:	1 OCTOBER 2020

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

1. The appellant (the Minister) appeals from orders made by a judge of this Court setting aside a decision of the second respondent (the Tribunal) and remitting the application for review by the first respondent to the Tribunal for determination according to law.

BACKGROUND

2. The respondent is an Iraqi citizen who arrived in Australia in 2007 as the holder of an offshore humanitarian visa at the age of 16. On 15 May 2017, the Minister cancelled the respondent’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) on the basis that he had been convicted of an offence for which he was sentenced to a term of imprisonment of 12 months or more and, at the time of the cancellation decision, he was serving a sentence of imprisonment on a full-time basis in a custodial institution. The respondent was notified of the cancellation decision and invited to make representations about revocation of that decision on 18 May 2017.

3. On 15 June 2017, the respondent sought revocation of the cancellation decision under s 501CA(4). In his request for revocation, the respondent stated that he did not want to return to Iraq because all of his family members resided in Australia, his father “was killed in Iraq and [his] sister was kidnap[p]ed because [they] [we]re Christian”, and he would be killed on return. In a decision made on 4 June 2018, a delegate of the Minister was not satisfied that there was another reason why the cancellation decision should be revoked.

4. On 11 June 2018, the respondent applied to the Tribunal for review of the Minister’s decision not to revoke the cancellation decision. On 20 July 2018, the respondent made representations to the Tribunal in essentially the same terms as his representations to the Minister. The Tribunal in its decision (at [67]), noted that these representations were repeated in oral evidence before it. These representations form the respondent’s key evidence and submissions and were as follows:

… I lost my father when I was very young and I have never really recovered from this. We were persecuted because of our religion and it is because we were Christians that my father was murdered.

…

I have no one back in Iraq. No friends of family, no support whatsoever. If I am sent back there I will have no help and be treated like a foreigner in this country. I will most likely be killed in this country because of my religion. This is why my family fled Iraq in this first place.

… My family would get crosses sent to us in the mail with letters calling us disbelievers and threatening us with death if we did not leave the country.

…

… I have lived a very hard life. First my life in Iraq was full of violence and persecution …

5. On the basis of these representations, the Tribunal made the following findings (at [6]-[7] and [107]):

6. At some (unspecified) time around October 2004 [the respondent]’s father was killed. There is no evidence before the Tribunal which is in any way probative of how this killing came about. In evidence [the respondent]’s mother … suggested that it might have been related to the fact that … the [respondent’s father] apparently worked for the American forces in Iraq; [the respondent] himself suggests it might more likely be related to the fact that his father was an Assyrian Christian and that Mosul has been one of the principal centres in which the barbarity of the Islamic State … has been most overtly on display.

7. Both [the respondent] and his mother referred to the fact that, at the same time as the killing of their father/husband, their young sister/daughter (aged approximately 10 years) was kidnapped. By whom, exactly when, and exactly how she was restored to her family cannot be stated with any certainty but this appears to have been some time in 2005.

…

107. It is not difficult to feel sympathy for the [respondent]. He has lost his father, suffered persecution … However he is not unique in this respect: many refugees from war-ravaged places such...