EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536

Federal Court of Australia

EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 File number(s): VID 284 of 2021

Judgment of: PERRY J

Date of judgment: 10 December 2021

Catchwords: MIGRATION – application for judicial review of decision of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs – where Minister refused to grant applicant protection visa on character grounds under s 501(1) of Migration Act 1958 (Cth) – where applicant had committed offences as a child for which no convictions were recorded – whether Minister's finding that the prospect of ministerial intervention to exercise the Minister's personal, non-compellable powers in the future to grant a visa or make the applicant subject to a residence determination was not "unrealistic" was illogical or irrational – where Minister found that any future reoffending by the applicant could have "serious consequences" for community and "great harm" could result – where Minister found that "any level of risk is unacceptable" – jurisdictional error established MIGRATION – where probable consequence of refusal of visa application would be indefinite detention – where prolonged and indefinite detention was likely to exacerbate the applicant's existing mental health issues – whether substantial and clearly articulated claim made that the psychological harm from which the applicant would be likely to suffer as a result of indefinite detention would reach the level of cruel, inhuman or degrading treatment contrary to Art 7 of the International Covenant on Civil and Political Rights – where Minister failed to meaningfully engage with claim – whether failure to meaningfully engage with claim was material – jurisdictional error established MIGRATION – whether Minister lacked power to refuse to grant visa because all valid criteria had earlier been met – whether Minister or his delegate under duty to grant the visa – whether public interest criterion 4001 of Sch 4 to the Migration Regulations 1994 (Cth) invalid by reason of inconsistency with Migration Act 1958 (Cth) – KDSP v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] HCA 24; (2021) 95 ALJR 666 followed – challenge to validity of public interest criterion 4001 dismissed MIGRATION – whether Minister misconstrued s 501(6)(d)(i) of Migration Act 1958 (Cth) in taking into account "the nature of the harm … should [the applicant] engage in … other serious conduct" – whether no probative evidence for Minister's finding that applicant had received "ongoing engagement with support services" or that applicant presented increased risk of offending once removed from immigration detention – whether Minister erred in failing to consider the applicant's submissions that "community expectations" should take account of the applicant's circumstances and in applying the deemed community expectations in Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA – whether inference should be drawn that Minister did not engage in any active intellectual process in respect of relevant material given its volume and the length of time available for his consideration – whether inference should be drawn that decision made by delegate and not Minister personally – whether the Minister's decision to make the refusal decision personally thereby denying the applicant merits review was legally unreasonable or the product of the Minister's failure to consider that legal consequence PRACTICE AND PROCEDURE – interlocutory application for leave to re-open and to file second further amended originating application refused