ENT19 v Minister for Home Affairs [2021] FCAFC 217

Federal Court of Australia

ENT19 v Minister for Home Affairs [2021] FCAFC 217 Appeal from: ENT19 v Minister For Home Affairs [2020] FCCA 2653

File number: NSD 1272 of 2020

Judgment of: COLLIER, KATZMANN, WHEELAHAN JJ

Date of judgment: 26 November 2021

Catchwords: MIGRATION — appeal from decision of the Federal Circuit Court to dismiss an application for judicial review of a decision to refuse to grant a Safe Haven Enterprise visa — where Minister not satisfied that the grant of the visa was in the national interest under cl 790.227 of the Migration Regulations 1994 (Cth) — where appellant convicted of, and sentenced for, a people smuggling offence but recognised as a refugee at risk of serious harm in his country of nationality and where appellant satisfied all other visa criteria and there was no evidence that he was entitled to enter and reside in a country other than his country of nationality, whether Minister did not consider the prospect of refoulement and the potential breach by Australia of its non-refoulement treaty obligations — whether, if so, the Minister was bound to do so — whether primary judge erred by making a finding of fact in the absence of evidence — whether Minister's decision legally unreasonable because appellant not found to be a person whom the Minister considered a danger to Australia's security within s 36(1C) of the Migration Act 1958 (Cth) or because it was made for the purpose of further punishing the appellant

Legislation: Acts Interpretation Act 1901 (Cth) s 25D Australian Security Intelligence Organisation Act 1979 (Cth) s 4 Evidence Act 1995 (Cth) s144 Migration Act 1958 (Cth) ss 5H, 5J, 35A, 36, 37A, 46A, 65(1), 195A, 197AB, 197C, 198(6), 496(1), 501(1) Migration Regulations 1994 (Cth) Sch 2, cl 790.227 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Opened for signature 10 December 1984. 1465 UNTS 85 art 3. (entered into force 26 June 1987) Convention Relating to the Status of Refugees. Opened for signature 28 July 1951. 189 UNTS 137 arts 33, 42(1). (entered into force 22 April 1954) International Covenant on Civil and Political Rights. Opened for signature 16 December 1966. 999 UNTS 171. (entered into force 23 March 1976) Protocol Relating to the Status of Refugees. Opened for signature 31 January 1967. 606 UNTS 267. (entered into force 4 October 1967) Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)