Sowa v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 28 June 2019
• Neutral Citation: [2019] FCAFC 111
• Date: 28 June 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Sowa v Minister for Home Affairs [2019] FCAFC 111

Appeal from:	Sowa v Minister for Home Affairs [2018] FCA 1999
File number:	NSD 20 of 2019
Judges:	JAGOT, BROMWICH AND THAWLEY JJ
Date of judgment:	28 June 2019
Catchwords:	MIGRATION – appeal from the Federal Court of Australia dismissing an amended application for judicial review of a decision made by the Assistant Minister – jurisdictional error – whether there is a bar to the appellant making a protection visa application – whether the representations are analogous to those considered in Omar v Minister for Home Affairs [2019] FCA 279 – appeal dismissed.
Legislation:	Migration Act 1958 (Cth) ss 35A, 36(1), 36(1)(c), 36(2)(a), 36(2)(aa), 36(5), 46A, 48, 48(1)(b)(ii), 48A, 65, 189, 196, 499, 501(1), 501(3A), 501(6)(a), 501(7)(c), 501CA(3), 501CA(3)(a), 501CA(3)(b), 501CA(4), 501E, 501E(2)(a) Migration Regulations 1994 (Cth) regs 1401, 1402, cl 2.12(c) Ministers of State Act 1952 (Cth) s 4
Cases cited:	Ali v Minister for Immigration and Border Protection [2018] FCA 650; AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; (2016) 243 FCR 451 BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 250 FCR 209 DOB18 v Minister for Home Affairs [2018] FCA 1523 DOB18 v Minister for Home Affairs [2019] FCAFC 63 Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56 Omar v Minister for Home Affairs [2019] FCA 279 Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219
Date of hearing:	29 May 2019
Date of last submissions:	11 June 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	52
Counsel for the Appellant:	Mr Jason Williams
Solicitor for the Appellant:	Nikjoo Lawyers
Counsel for the Respondent:	Mr Craig Lenehan
Solicitor for the Respondent:	Sparke Helmore

ORDERS

		NSD 20 of 2019
BETWEEN:	SAHR PETER SOWA Appellant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGES:	JAGOT, BROMWICH AND THAWLEY JJ
DATE OF ORDER:	28 JUNE 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal as agreed or taxed.

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

REASONS FOR JUDGMENT

THE COURT:

Background

1. This is an appeal from orders made by a judge of this Court, dismissing an amended application for judicial review of a decision made by the Parliamentary Secretary to the first respondent, the Minister for Home Affairs, using the unofficial title “Assistant Minister for Home Affairs”: s 4 of the Ministers of State Act 1952 (Cth) and Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 250 FCR 209 at [38]-[42]. The Assistant Minister had decided not to revoke the mandatory cancellation of the visa held by the appellant, Mr Sahr Peter Sowa (non-revocation decision).

2. Mr Sowa is a citizen of Sierra Leone who arrived in Australia on 9 September 2009 at the age of 16. His mother and younger siblings are Australian citizens. The statement of reasons, which accompanied the Assistant Minister’s decision, records at [21] that Mr Sowa and his family arrived in Australia on a Class XB Subclass 202 Global Special Humanitarian visa. It is this visa which was the subject of the mandatory cancellation and the non-revocation decision.

3. The visa cancellation decision was made by a delegate of the Minister on 27 June 2017, under s 501(3A) of the Migration Act 1958 (Cth), which provided for the mandatory cancellation of a visa held by a person serving a sentence of full-time imprisonment who did not pass the character test. Mr Sowa was serving a sentence of full-time imprisonment in a New South Wales gaol for offences involving aggravated breaking and entering into a care facility for disabled persons and assault occasioning actual bodily harm. He had been in an intimate relationship with the victim, and had broken into her place of work and attacked her there. A further offence of assault with an act of indecency was taken into account on sentence. Those sentences, being in excess of 12 months, caused him to fail the character test in s 501(6)(a) when read with s 501(7)(c). His head sentence, confirmed on appeal, was 10 years with a non-parole period of 5 years expiring on 21 February 2018. He has been in immigration detention since his release from prison on 21 February 2018.

4. The Minister gave written notice of the visa cancellation decision in accordance with s 501CA(3)(a). That notice invited Mr Sowa to make representations about revocation of that decision, in accordance with s 501CA(3)(b). He responded to that invitation by requesting that the visa cancellation decision be revoked and making representations in support of that request. The Minister, which for this purpose includes the Assistant Minister, was empowered under s 501CA(4) to revoke the visa cancellation decision in response to such representations if satisfied that either the appellant passed the character test, or there was another reason why that decision should be revoked.

5. Mr Sowa expressly acknowledged that he failed the character test, but advanced to the Minister other reasons why the visa cancellation decision should nonetheless be revoked. As relevant to the grounds of review before the primary judge, and the appeal grounds, those reasons included a claim that he would face harm if returned to Sierra Leone due to the unstable and violent political environment there. He said that his father had been brutally killed at the hand of political rivals and that other of his family members were involved in human rights and political activities. He said this caused him to fear that his family had many enemies in Sierra Leone who would seek to harm him if he were to return there. A statutory declaration from his mother supported his claims that he would be in danger if he returned to Sierra Leone.

6. The Assistant Minister, acknowledging that representations had been made in accordance with the invitation, was not satisfied either that the appellant passed the character test, or that there was another reason why the visa cancellation decision should be revoked, such that the power to revoke was not enlivened. The reasons addressed the fears claimed by Mr Sowa, as summarised above. The reasons then considered Australia’s non-refoulement obligations as follows:

26. I am aware that the Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, the Minister has given a direction under s499 of the Act (Direction 75) requiring that decision makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration...