CMA19 v Minister for Home Affairs [2020] FCA 736

FEDERAL COURT OF AUSTRALIA

CMA19 v Minister for Home Affairs [2020] FCA 736 File number: VID 888 of 2019

Judge: MURPHY J

Date of judgment: 29 May 2020

Catchwords: MIGRATION – application for judicial review of a decision to refuse to grant the applicant a protection visa pursuant to s 501(1) of the Migration Act 1958 (Cth) – where a delegate of the Minister had found that the applicant was a refugee and entitled to complementary protection – where the Minister found the applicant failed the character test because he reasonably suspected that the applicant had knowingly and voluntarily contributed to conduct constituting war crimes and/or crimes against humanity MIGRATION – whether the Minister failed to afford the applicant procedural fairness – whether the Minister took into account an irrelevant consideration or acted for an improper purpose – whether the Minister's decision was legally unreasonable, irrational or illogical– whether the Minister failed to give proper consideration to the applicant's representations on harm – whether the Minister failed to engage in an active intellectual process with submissions advanced by the applicant MIGRATION – where the applicant has been in immigration detention for over a decade – whether the Minister failed to grant or refuse a protection visa to the applicant under s 65 of the Migration Act as soon as reasonably practicable – whether the applicants continuing detention is unlawful – whether it is appropriate to order the applicant's immediate release from detention

Legislation: Migration Act 1958 (Cth)

Cases cited: Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 ASP15 and Another v Commonwealth and Another [2016] FCAFC 145; (2016) 248 FCR 372 Attorney-General (Minister of Immigration) v Tamil X and Anor [2010] NZSC 107 Australian Competition and Consumer Commission v Chen [2003] FCA 897; (2003) 132 FCR 309 Australian Competition and Consumer Commission v Eurong Beach Resort Ltd and Ors [2005] FCA 1134 Australian Competition and Consumer Commission v Knight [2007] FCA 1011; (2007) ATPR 42-165 Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317 BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2016) 248 FCR 456 BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131 BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 260 CLR 1 DHW17 v Minister for Home Affairs [2019] FCA 985 Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151; (2004) 139 FCR 292 Durani v Minister for Immigration and Border Protection [2013] FCA 1264; (2013) 223 FCR 391 Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 FPU18 v Minister for Immigration and Border Protection [2018] FCA 1606 FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 374 ALR 601 Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; (2016) 160 ALD 123 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533 Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; (2013) 85 NSWLR 86 M238 of 2002 v The Honourable Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260 Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; (2016) 249 FCR 275 Minister for Foreign Affairs v Lee [2014] FCA 927; (2014) 227 FCR 279 Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54 Misiura v Minister for Immigration and Multicultural Affairs [2001] FCA 133 MZYVM v Minister for Immigration and Citizenship [2013] FCA 79; (2013) 139 ALD 497 NAES v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2 Navoto v Minister for Home Affairs [2019] FCAFC 135 NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 Oluwafemi v Minister for Home Affairs [2018] FCA 1389 Picard v Minister for Immigration and Border Protection [2015] FCA 1430 Plaintiff M76/2013 v Minister for Immigration and Border Protection [2013] HCA 53; (2013) 251 CLR 322 Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219 Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; (2004) 225 CLR 1 Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 Snedden v Minister for Justice [2014] FCAFC 156; (2014) 230 FCR 82 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Thompson v Randwick Corporation [1950] HCA 33; (1950) 81 CLR 87 Thornton v Repatriation Commission [1981] FCA 71; (1981) 35 ALR 485 Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc [1993] FCA 105; (1993) 41 FCR 89 Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296 WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 WASB v Minister for Immigration and Citizenship [2013] FCA 1016; (2013) 217 FCR 292