BAL19 v Minister for Home Affairs [2019] FCA 2189

FEDERAL COURT OF AUSTRALIA

BAL19 v Minister for Home Affairs [2019] FCA 2189 File number: NSD 393 of 2019

Judge: RARES J

Date of judgment: 24 December 2019

Catchwords: MIGRATION – application for Constitutional writ relief – where Minister personally refused grant of protection visa under s 501(1) of the Migration Act 1958 (Cth) because any risk of applicant being danger to Australian community under s 501(6)(d)(v) was unacceptable – where Minister found applicant to be refugee and Australia to owe applicant protection obligations – where Minister's reasons referred to theoretical possibility of grant of another visa but did not consider legal consequence of refusal of what would happen to applicant if refouled in accordance with ss 197C and 198 of the Migration Act 1958 (Cth) – whether Minister referred to possibility of another visa to avoid immediate breach of non-refoulement obligations so applicant would be left indefinitely in immigration detention – whether Minister's reasoning perfunctory and failed to engage in active intellectual process because of lack of consideration of legal consequences of refoulement – where reference to theoretical grant of other visa an irrelevant consideration – where applicant had no realistic prospect of being granted any other visa if Minister exercised non-compellable powers to allow application under ss 48B and or 195A of the Migration Act 1958 (Cth) because of Minister's finding that any risk of danger to Australian community from applicant was unacceptable and such risk necessarily inherent in grant of any other visa – material jurisdictional error MIGRATION – whether general powers to refuse to grant visas under s 501 and its analogues in Pt 9 of the Migration Act 1958 (Cth) and prescription of PIC 4001 in cl 785.226 of the Migration Regulations 1994 (Cth) of criterion for protection visa under s 31(3) are inconsistent with specific power in s 36(1C) of the Migration Act 1958 (Cth) to refuse to grant a protection visa – where enactment of ss 36(1C) and 197C intended to codify Australia's non-refoulement and protection obligations under Arts 32 and 33 of the Refugees Convention – where specific, mandatory and more restrictive criteria for protection visa in s 36(1C) inconsistent with s 501(6)(d)(v) and excludes availability of general powers in s 501 and its analogues in Pt 9 as a basis to refuse to grant protection visa – where PIC 4001 in cl 785.226 inconsistent with s 36(1C) STATUTORY INTERPRETATION – whether regulation invalid if inconsistent with specific provision of Act – where cl 786.226(a) made under s 31(3) prescribed that PIC 4001 was criterion for protection visa – where PIC 4001 prescribed disqualifying criteria that s 36(1C) expressly provided were not disqualifications for grant of protection visa – where PIC 4001 invalid as inconsistent with s 36(1C)