Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 557

FEDERAL COURT OF AUSTRALIA

Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 557 File number: VID 730 of 2019

Judge: KERR J

Date of judgment: 29 April 2020

Catchwords: MIGRATION – visa cancellation on character grounds – application for review of decision by Minister not to revoke visa cancellation pursuant to s 501CA(4) of the Migration Act 1958 (Cth) – whether failure to give meaningful consideration to substantial and clearly articulated representations concerning risk of harm if returned to Somalia, including risk that applicant would perish soon after arrival – Minister "noted" and "had regard" to various representations – Minister accepted that applicant would suffer "hardship" if returned – consideration of Minister for Home Affairs v Omar [2019] FCAFC 188 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 – relevance of failure to supply corroborative country information – jurisdictional error established – application upheld MIGRATION – whether Minister erred in failing to consider applicant's representations regarding non-refoulement obligations on the assumption that they would be addressed in relation to a future protection visa application because assessing those obligations is a qualitatively different task under ss 501CA and 65 of the Migration Act 1958 (Cth) – consideration of Omar v Minister for Home Affairs [2019] FCA 279, DOB18 v Minister for Home Affairs [2019] FCAFC 63 and related authorities – case law unsettled – DGI19 v Minister for Home Affairs [2019] FCA 1867 not plainly wrong in concluding Omar v Minister for Home Affairs [2019] FCA 279 remains good law – jurisdictional error established MIGRATION – whether Minister erred in failing to consider applicant's representations regarding non-refoulement obligations on the assumption that they would be addressed in relation to a future protection visa application because those obligations have a materially different content under ss 501CA and 65 of the Migration Act 1958 (Cth) – application of Ibrahim v Minister for Home Affairs [2019] FCAFC 89 – any error not material as any differences between international obligations and statutory criteria not relevant to Minister's decision – jurisdictional error not established MIGRATION – whether Minister's conclusion that risk of harm to Australian community outweighed other considerations legally unreasonable – jurisdictional error established in view of other errors made in reasoning underpinning that conclusion