Omar v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: MORTIMER J
• Judgment Date: 07 March 2019
• Neutral Citation: [2019] FCA 279
• Court: Federal Court
• Date: 07 March 2019

FEDERAL COURT OF AUSTRALIA

Omar v Minister for Home Affairs [2019] FCA 279

File number:	VID 387 of 2018
Judge:	MORTIMER J
Date of judgment:	7 March 2019
Catchwords:	MIGRATION – application for judicial review of exercise of power by Assistant Minister under s 501CA(4) of the Migration Act 1958 (Cth) – where Assistant Minister decided not to revoke cancellation of applicant’s visa - where applicant made representations to Assistant Minister about engagement of Australia’s non-refoulement obligations – where Assistant Minister considered it unnecessary to determine whether non-refoulement obligations owed in circumstances where applicant could make a valid application for a protection visa – whether Assistant Minister failed to perform statutory task – consideration of content of non-refoulement obligations at international law and in criteria for grant of a protection visa under the Migration Act 1958 (Cth) – consideration of Direction 75 - discussion of BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 – decision of Assistant Minister set aside
Legislation:	Migration Act 1958 (Cth) ss 5H, 5J, 36(1C), 36(2), 36(2C), 65, 197C, 198, 499, 501(3A), 501CA Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) Migration Regulations 1994 (Cth) Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Cases cited:	Ali v Minister for Immigration and Border Protection [2018] FCA 650 BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 250 FCR 209 DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 Greene v Assistant Minister for Home Affairs [2018] FCA 919 Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; 231 CLR 1 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; 222 CLR 161 One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; 356 ALR 535 Patto v Minister for Immigration and Multicultural Affairs [2000] FCA 1554; 106 FCR 119 Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1 Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13
Date of hearing:	13 September 2018
Date of last submissions:	8 October 2018
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	83
Counsel for the Applicant:	Mr N M Wood
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the Respondent:	Mr R Knowles
Solicitor for the Respondent:	Sparke Helmore Lawyers

ORDERS

		VID 387 of 2018
BETWEEN:	MUHUMED HASSAN OMAR Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGE:	MORTIMER J
DATE OF ORDER:	7 March 2019

THE COURT ORDERS THAT:

1. The decision of the Assistant Minister made on 27 February 2018 not to revoke the decision of a delegate of the respondent under s 501(3A) of the Migration Act 1958 (Cth) to cancel the applicant’s Class BC Subclass 100 Partner (Migrant) visa be set aside.

2. The respondent pay the applicant’s costs, to be fixed in a lump sum.

3. If the parties agree on a lump sum figure in relation to the applicant’s costs, they are to file a joint minute of proposed orders on or before 4 pm on 21 March 2019.

4. In the absence of any joint minute of proposed orders, pursuant to paragraph 3 of these orders:

   1. on or before 4 pm on 28 March 2019, the applicant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016.

   2. on or before 4 pm on 4 April 2019, the respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

5. In the absence of any agreement having been reached on or before 11 April 2019, the matter of an appropriate lump sum figure for the applicant’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

1. The Court has decided the decision of the Assistant Minister not to revoke the cancellation of the applicant’s visa should be set aside. These are the Court’s reasons for that decision.

Introduction and summary

2. This is a judicial review application in relation to a decision of the Assistant Minister made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Migration Act”), in which the Assistant Minister decided not to exercise the discretionary power reposed in him by that provision to revoke an earlier decision of a delegate under s 501(3A) to cancel the applicant’s Class BC Subclass 100 Spouse (Migrant) visa, which I will call the “partner visa” in these reasons.

3. The applicant is a citizen of Somalia who had been granted the partner visa on 2 September 2003, when he was approximately 17 years old. He gained this visa as a dependent on his aunt’s application, where his aunt was the primary visa holder. The evidence establishes, and there is no real debate between the parties, that the applicant has a traumatic background in Somalia.

4. Not long after being granted the partner visa, the applicant committed a number of criminal offences, including thefts, assaults and robbery. In April 2008, the County Court of Victoria convicted the applicant of the offence of intentionally causing serious injury and sentenced him to imprisonment for three years and, in...