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

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: Farrell,Rangiah,Anderson JJ
• Judgment Date: 12 August 2021
• Neutral Citation: [2021] FCAFC 141
• Date: 12 August 2021

Federal Court of Australia

Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 141

Appeal from:	Ratu v Minister for Home Affairs [2020] FCA 1779
File number:	NSD 12 of 2021
Judgment of:	FARRELL, RANGIAH AND ANDERSON JJ
Date of judgment:	12 August 2021
Catchwords:	MIGRATION – Migration Act 1958 (Cth) – appeal against decision of Federal Court of Australia – where mandatory cancellation of appellant’s visa under s 501(3A) – where Minister made a decision under s 501CA(4) to not revoke the cancellation decision – where primary judge affirmed the Minister’s non-revocation decision – whether Minister’s failure to put the appellant on notice that a decision may be made contrary to Australia’s international obligation under Art 12(4) of the International Covenant on Civil and Political Rights constitutes a denial of procedural fairness – whether Art 12(4) constitutes a mandatory relevant consideration – both grounds of appeal dismissed
Legislation:	Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) ss 3(1), 8(1) and (3) Migration Act 1958 (Cth) ss 4, 6(2) (repealed), 14, 189, 196, 476, 476A, 499, 501 and 501CA Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) Convention on the Rights of the Child. Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) Art 3 Convention Relating to the Status of Refugees. Opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) Art 33 International Covenant on Civil and Political Rights. Opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976) Arts 6(1), 7, 9(1), 12(1), 13, 14(6) and (7), 17, 21, 22(1) and (2), 23(1), 24(1) and 26
Cases cited:	Amohanga v Minister for Immigration and Citizenship (2013) 209 FCR 487 Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 94 ALJR 897; [2020] HCA 32 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 DQU16 v Minister for Home Affairs (2021) 95 ALJR 352; [2021] HCA 10 Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47 Jacob v Utah Construction and Engineering Pty Ltd (1966) 116 CLR 200 KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1 Minister for Immigration and Border Protection v DRP17 (2018) 267 FCR 492 Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 Nystrom v Australia (Communication No 1557/2007) Pennie v Minister for Home Affairs [2019] FCAFC 129 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Snedden v Minister for Justice (2014) 230 FCR 82 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 Viro v R (1978) 141 CLR 88 Western Export Services Inc v Jireh International Pty Ltd (2011) 86 ALJR 1; [2011] HCA 45
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	77
Date of hearing:	28 May 2021
Counsel for the Appellant:	Mr O Jones
Solicitor for the Appellant:	Firmstone & Associates
Counsel for the Respondent:	Mr P Knowles
Solicitor for the Respondent:	Mills Oakley

ORDERS

		NSD 12 of 2021
BETWEEN:	JEREMAIA DAKUITOGA RATU Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

order made by:	FARRELL, RANGIAH AND ANDERSON JJ
DATE OF ORDER:	12 AUGUST 2021

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

Background	[5]
The relevant legislation	[10]
The Minister’s decision	[15]
The judgment of the primary judge	[24]
The submissions	[28]
Consideration	[34]
Ground 1: Denial of procedural fairness	[34]
Ground 2: Failure to take into account a mandatory relevant consideration	[72]
Disposition	[76]

THE COURT:

1. This is an appeal against the judgment of a single judge of this Court in Ratu v Minister for Home Affairs [2020] FCA 1779.

2. The primary judge dismissed the appellant’s application for judicial review of a decision made by the respondent (the Minister) to not revoke the mandatory cancellation of the appellant’s visa. The Minister’s decision was made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).

3. The appellant’s arguments in the appeal focus upon Art 12(4) of the International Covenant on Civil and Political Rights (ICCPR), which provides that no-one shall be arbitrarily deprived of the right to enter their own country. The appellant submits that the Minister’s failure to put the appellant on notice that a decision may be made contrary to Australia’s obligation under Art 12(4) was a denial of procedural fairness. The appellant also submits that the obligation under Art 12(4) was a mandatory relevant consideration which the Minister failed to consider.

4. It is necessary to describe the factual background, the relevant legislative provisions, the Minister’s decision and the judgment of the primary judge before considering the submissions of the parties.

Background

5. The appellant is a citizen of Fiji. He arrived in Australia in 1985, as a four year old child. In 1999, he was granted a Certain Unlawful Non-Citizens (Class AG Subclass 833) visa.

6. In 2001, the appellant was sentenced to a term of 16 years of imprisonment for murder. He was released from prison in 2016, but was sentenced to 14 months’ imprisonment in 2018 for various offences against his partner, including assault occasioning bodily harm.

7. On 21 May 2018, a...