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

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