Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19

• Jurisdiction: Australia Federal only
• Judgment Date: 30 July 2021
• Neutral Citation: [2021] FCAFC 133
• Date: 30 July 2021
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133

Appeal from:	ERY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 569; (2020) 170 ALD 83
File number:	NSD 610 of 2020
Judgment of:	wigney, lee and wheelahan jJ
Date of judgment:	30 July 2021
Catchwords:	MIGRATION – appeal from order to set aside decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant the respondent a protection visa – Chinese national alleged to have defrauded banks or other monetary institutions of loans – Interpol red notice issued by Chinese government in relation to the respondent – whether primary judge erred in holding that the Minister misconstrued or misapplied s 501(6)(h) of the Migration Act 1958 (Cth) – whether it was reasonable to infer from the Interpol red notice that the respondent would present a risk to the Australian community or a segment of it – consideration of the meaning of “risk” – conflicting first instance authority – relevance of country information concerning Chinese criminal justice system – Minister’s reasons unreasonable on both lines of authority – appeal dismissed
Legislation:	Acts Interpretation Act 1901 (Cth), s 15AA Migration Act 1958 (Cth) ss 5J, 36, 116, 195A, 501 Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Cases cited:	AEM20 v Minister for Home Affairs [2020] FCA 623; (2020) 277 FCR 229 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 BAL19 v Minister for Home Affairs [2019] FCA 2189; (2019) 168 ALD 276 Carr v Western Australia [2017] HCA 47; (2007) 232 CLR 138 Carrascalao v Minister for Immigration and Border Protection [2017] FACFC 107; (2017) 252 FCR 352 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 Commonwealth v Baume (1905) 2 CLR 405 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 DVE18 v Minister for Home Affairs [2020] FCAFC 83; (2020) 276 FCR 401 ERY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 569; (2020) 170 ALD 83 FUD18 v Minister for Home Affairs [2019] FCA 1858 FUD18 v Minister for Home Affairs [2020] FCA 48; (2020) 168 ALD 474 FUD18 v Minister for Home Affairs [2021] FCAFC 132 George v Rockett (1990) 170 CLR 104 KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108; (2020) 279 FCR 1 McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 386 ALR 200 Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 (by his litigation representative BFW20A) [2020] FCAFC 121; (2020) 171 ALD 102 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Minister of State for Recourses v Dover Fisheries Pty Ltd (1993) 43 FCR 565 Newall v Minister for Immigration and Multicultural Affairs [1999] FCA 1624 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 Prior v Mole [2017] HCA 10; (2017) 261 CLR 265 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Ross v The Queen (1979) 141 CLR 432 Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80
	Oxford English Dictionary Online (Oxford University Press, July 2021) Shorter Oxford English Dictionary (5th ed, Oxford University Press, 2002) Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	145
Date of hearing:	16 November 2021
Solicitor for the Appellant:	Mr G Johnson SC with Mr B Kaplan
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondent:	Mr N Williams SC with Mr L Karp
Solicitor for the Respondent:	Lawside Lawyers

ORDERS

		NSD 610 of 2020
BETWEEN:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Appellant
AND:	ERY19 Respondent

order made by:	WIGNEY, LEE AND WHEELAHAN jj
DATE OF ORDER:	30 July 2021

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

2. The respondent’s application for a protection visa dated 23 October 2012 be determined by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs according to law.

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

REASONS FOR JUDGMENT

WIGNEY J:

1 The respondent to this appeal, who for ease of reference will be referred to as Mr Z, is a citizen of the People’s Republic of China who has sought asylum in Australia. The appellant, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused Mr Z’s application for a Protection (Class XA) visa, not because it was not accepted that Australia owed him protection obligations, but because the Minister was not satisfied that Mr Z passed the “character test” in s 501 of the Migration Act 1958 (Cth). That decision, however, was set aside by the primary judge, who found that it was infected by jurisdictional error: ERY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020]...