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

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: COLVIN J
• Judgment Date: 24 January 2020
• Neutral Citation: [2020] FCA 28
• Date: 24 January 2020

FEDERAL COURT OF AUSTRALIA

ZYVZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 28

Review from:	ZYVZ and Minister for Immigration and Border Protection [2018] AATA 3967
File number:	WAD 38 of 2019
Judge:	COLVIN J
Date of judgment:	24 January 2020
Catchwords:	MIGRATION - application to review decision of Administrative Appeals Tribunal dismissing application to review delegate's decision to refuse to grant a protection visa - extension of time required for application - where applicant charged and convicted of gang rape and abduction offences committed outside of Australia prior to arrival in Australia - where applicant convicted in absentia - where Tribunal decided that there were serious reasons for considering that applicant had committed serious non‑political crimes of gang rape and abduction as well as people smuggling - consideration of s 36(2C) of Migration Act 1958 (Cth) - consideration of standard of reasoning that will be 'serious reasons for considering' - that serious crimes had been committed - extension of time granted - review grounds as to serious reasons for considering applicant had committed crimes of rape and abduction not upheld - not necessary to determine review grounds as to whether people smuggling is a serious non-political crime - application for review dismissed
Legislation:	Migration Act 1958 (Cth) ss 5H, 36, 233A, 233C, 476, 476A, 477A, 500 Criminal Procedure Act 2004 (WA) s 88 Criminal Code 1899 (Qld) s 617
Cases cited:	Al-Sirri v Secretary of State for the Home Department [2013] 1 AC 745 Arquita v Minister for Immigration and Multicultural Affairs [2000] FCA 1889; (2000) 106 FCR 465 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 CRI026 v The Republic of Nauru [2018] HCA 19 Ebatarinja v Deland [1998] HCA 62; (1998) 194 CLR 444 ETA067 v The Republic of Nauru [2018] HCA 46 FTZK v Minister for Immigration and Border Protection [2014] HCA 26 Hellenic Republic v Tzatzimakis [2003] FCAFC 4; (2003) 127 FCR 130 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 JSDW and Minister for Immigration and Border Protection [2017] AATA 2420 Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485 Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456 MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133; (2015) 234 FCR 154 NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; (2005) 222 CLR 161 R v Abrahams (1895) 21 VLR 343 R v Gee [2012] SASCFC 86; (2012) 113 SASR 372 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Date of hearing:	21 January 2020
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	102
Counsel for the Applicant:	Dr JL Cameron (Pro Bono)
Counsel for the First Respondent:	Mr PR MacLiver
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Applicant:	The second respondent filed a submitting notice save as to costs

ORDERS

		WAD 38 of 2019
BETWEEN:	ZYVZ Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	COLVIN J
DATE OF ORDER:	24 JANUARY 2020

THE COURT ORDERS THAT:

1. There be an extension of time to enable the application to be brought.

2. The application be dismissed.

3. The applicant 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

COLVIN J:

1. The applicant travelled to Australia by boat. The boat was intercepted and he was transferred to Christmas Island in September 2012. He sought refugee protection. A delegate of the Minister refused his application. In 2016 he was also found by the Immigration Assessment Authority not to be a refugee. However, the Authority found that if the applicant was returned to Sri Lanka there was a real risk that he would suffer significant harm in the form of torture by the Sri Lankan security forces. The risk of harm was found to arise because he was likely to be held in detention pending investigation or charges of facilitating a people smuggling venture. The risk of detention arose in part because the Authority found that the applicant had left Sri Lanka while charges of rape and abduction were pending against him.

2. In consequence of its findings, the Authority determined that the applicant's application for protection should be reconsidered for complementary protection reasons. Speaking generally, complementary protection is afforded where it is a necessary and foreseeable consequence of removal from Australia to another country that a person seeking refuge will suffer significant harm.

3. The application was remitted for reconsideration. A delegate of the Minister then found that the applicant had been charged and convicted of the abduction and gang rape of a woman in Sri Lanka and had also committed people smuggling offences. On that basis, the delegate concluded that there were serious reasons for concluding that the applicant had committed serious non‑political crimes before entering Australia. The significance of that finding was that the Migration Act 1958 (Cth) provides that a person is taken not to satisfy the criterion for complementary protection if, amongst other things, 'the Minister has serious reasons for considering that … the [visa applicant] committed a serious non‑political crime before entering Australia': s 36(2)(a) and (aa), s 5H (definition of refugee) and s 36(2C).

4. The effect of the decision by the Minister's delegate was that certain aspects of the matters that had been advanced by the applicant to support his protection visa application came to be relied upon to conclude that he was not entitled to protection because one of the exclusions in s 36(2C) applied.

5. The applicant sought review in the Administrative Appeals Tribunal. The Tribunal affirmed the decision under review. The applicant now seeks to review the Tribunal's decision.

6. The applicant raises two grounds of review. First, as to the rape and abduction offences, it is contended that the reasoning by the Tribunal shows that it misconstrued or misapplied s 36(2C)...