DQM18 v Minister for Home Affairs [2019] FCA 852

FEDERAL COURT OF AUSTRALIA

DQM18 v Minister for Home Affairs [2019] FCA 852 File number: VID 860 of 2018

Judge: O'CALLAGHAN J

Date of judgment: 7 June 2019

Catchwords: MIGRATION – application for review of decision not to revoke decision to cancel visa under s 501CA of the Migration Act 1958 (Cth) – application dismissed

Legislation: Migration Act 1958 (Cth) s 501CA

Cases cited: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Date of hearing: 13 May 2018

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 56

Counsel for the Applicant: T B Goodwin

Counsel for the Respondent: G Hill

Solicitor for the Respondent: Australian Government Solicitor

ORDERS VID 860 of 2018

BETWEEN: DQM18 Applicant

AND: MINISTER FOR HOME AFFAIRS Respondent

JUDGE: O'CALLAGHAN J DATE OF ORDER: 7 June 2019

THE COURT ORDERS THAT:

1. The amended application dated 8 May 2019 be dismissed. 2. The parties file any written submissions on the question of costs within seven days. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O'CALLAGHAN J:

Introduction 1 The applicant seeks to quash a decision by the Assistant Minister for Home Affairs (the Minister), made under s 501CA of the Migration Act 1958 (Cth) (the Act), not to revoke an earlier decision to cancel his Class XB Subclass 200 Refugee (Permanent) visa (the visa). 2 The applicant was born on 24 April 1989 in Khartoum, Sudan. His father disappeared in the Sudanese Civil War in around 1999 and the applicant, with his mother and four younger brothers, fled to Egypt and eventually migrated to Australia in December 2005 as the holders of permanent refugee visas. 3 On 22 September 2015, the applicant was sentenced to 15 months imprisonment for the offence of recklessly causing injury. The National Police Certificate dated 7 April 2016 in evidence also listed numerous other offences. On the basis of the term of imprisonment of 15 months, a delegate of the Minister mandatorily cancelled the applicant's visa pursuant to s 501(3A) of the Act on 4 May 2016. 4 On 6 May 2016, the applicant was released from criminal custody and entered immigration detention. 5 On 11 May 2016, the applicant made representations to the Minister requesting that he revoke the mandatory cancellation decision under s 501CA(4) of the Act. The applicant provided supporting material, including submissions from his legal representatives, Victoria Legal Aid, and references from his mother, his former partner, two of his brothers and his brother's partner. The applicant was also interviewed. On 2 May 2017, the Minister determined not to revoke the mandatory cancellation decision. 6 On 4 December 2017, the decision of the Minister was quashed and remitted for reconsideration by consent, for reasons that are now immaterial. 7 On 23 February 2018, the applicant was invited to provide further information to the Minister. On 28 February 2018, the applicant provided, among other things, further information regarding his time in immigration detention. 8 On 3 July 2018, the Minister determined not to revoke the mandatory cancellation decision and provided reasons for doing so (the reasons). 9 The applicant concedes that the applicant did not pass the character test and that s 501CA(4)(b)(i) was not met. 10 The applicant argues that the errors in the decision lie in the Minister's consideration of whether there was another reason why the mandatory cancellation decision should be revoked pursuant to s 501CA(4)(b)(ii). 11 The applicant relies on two grounds of appeal, namely that: (1) Ground 1 – the decision is affected by legal unreasonableness, illogicality and/or irrationality in regard to how the Minister dealt with the familial support that the applicant would have access to if removed to Sudan or South Sudan and further or alternatively, he failed to have regard to representations regarding that matter; and (2) Ground 2 – the Minister failed properly to consider the representations of the applicant that attempted to explain incidents of violence during his time in immigration detention.