ECE21 v Minister for Home Affairs [2021] FCA 1447

Federal Court of Australia

ECE21 v Minister for Home Affairs [2021] FCA 1447 File number: WAD 104 of 2021

Judgment of: JACKSON J

Date of judgment: 22 November 2021

Catchwords: MIGRATION - application for judicial review of a decision made by the Minister under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the applicant's visa - whether the Minister failed to make findings on claims made by the applicant to engage Australia's protection obligations - whether the Minister engaged in an active intellectual process when considering the claims - characterisation of the Minister's findings - Minister rejected claims on the basis of lack of evidence - in the circumstances Minister not obliged to consider the probability that harm would occur - adequate engagement with the claims - application dismissed PRACTICE AND PROCEDURE - suppression orders - applicant a citizen of South Sudan - Minister accepted that Australia owed non-refoulement obligations to the applicant - real risk of serious harm to the applicant if returned to South Sudan - s 91X of the Migration Act 1958 (Cth) not applicable - suppression order under s 37AF of the Federal Court of Australia Act 1976 (Cth) necessary to protect the safety of the applicant - applicant's name suppressed and pseudonym applied

Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG Migration Act 1958 (Cth) ss 5AAA, 91X, 197C, 198, 501, 501CA

Cases cited: AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 364 ALR 202 BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; (2020) 385 ALR 286 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474 EXT20 v Minister for Home Affairs [2021] FCA 629 G v Minister for Immigration and Border Protection [2018] FCA 1229; (2018) 266 FCR 511 Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569 Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; (2010) 117 ALD 441 Perera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 403 Warnakulasuriya v Minister for Immigration and Multicultural Affairs (unreported, Finkelstein J, 6 April 1998)