FEDERAL COURT OF AUSTRALIA

EVK18 v Minister for Home Affairs [2019] FCA 229

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the Respondent’s costs as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

1    The Applicant is a 50 year old citizen of Jordan. As a young man he was treated brutally by the Jordanian authorities on account of his family’s association with Hamas. He was subjected to prolonged torture. In consequence he has experienced very severe post-traumatic stress disorder. He arrived in Australia on 21 September 1993 as the holder of a business (short stay) visa. Subsequently, in September 1995, he was granted a protection visa. The last visa he held was a class BB Subclass 155 Five Year Resident Return (permanent) visa. He has therefore been resident in Australia for 25 years. He has worked at various occupations during that period including as a fencing labourer and abattoir worker. More recently, for 8 years he operated a successful computer repair business. At the same time he was pursuing further education by enrolling in a course of study for the Certificate IV in Computer Software. He has two Australian children aged 12 and 18. They are his only family in Australia. He no longer has any family in Jordan.

2    However, there is another side to the Applicant. Prior to 2013 the Applicant had managed to accrue a substantial criminal record. A lot of the offences concerned possession of prohibited drugs (he has a problem with marijuana) but there were also offences of common assault and stalk and intimidate. On 16 November 2013, the Applicant lay in wait for a Mr Potter with whom he had some grievance. The nature of this grievance has never been fully explained. The Applicant attacked Mr Potter with an axe, striking him in the head several times. There was a fight and Mr Potter managed to wrestle the axe from the Applicant and hit him with it. The Applicant fled. He was apprehended quickly and charged with the offence of wound with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). He eventually pleaded guilty and, on 27 May 2016, was sentenced by Colefax DCJ sitting in the District Court of New South Wales to a term of imprisonment of seven years and two months with a non-parole period of three years and seven months backdated to 16 November 2013 (the date of the offence). The earliest he could be released was, therefore, 15 June 2017.

3    This train of events brought him to the attention of the Minister for Immigration and Border Protection. On 2 February 2017, a delegate of the Minister wrote to the Applicant at the Mannus Correctional Centre to inform him that his visa had been cancelled. This had occurred because the fact that the Applicant had been sentenced to a period of imprisonment in excess of 12 months meant that he had ‘a substantial criminal record’ within the meaning of s 501(7)(c) of the Migration Act 1958 (Cth) (‘the Act’) which, in turn, meant that he did not pass the ‘character test’ in s 501(6)(a). Because the Applicant was at this time in custody, the consequence of the delegate being satisfied that he did not pass the character test was that his visa had to be cancelled: s 501(3A).

4    Where a visa is mandatorily cancelled under s 501(3A) there exists a right to apply to the Minister to revoke that cancellation: s 501CA(3). On 4 February 2017, the Applicant applied for such a revocation. On 3 July 2018, the Assistant Minister for Home Affairs decided personally that the cancellation should not be revoked. Where such a decision is made personally by the Minister it is not subject to review by the Administrative Appeals Tribunal: s 501CA(7). Lacking any other avenue of review, the Applicant has now brought judicial review proceedings in this Court seeking to quash the Minister’s decision.

5    For the hearing of the present application, the Applicant appeared by video-link from Yongah Hill Immigration Detention Centre in Western Australia. When the case commenced, the Applicant applied for an adjournment so as to obtain legal representation. I refused the application on the basis that he had been given a list of possible pro bono lawyers on 25 September 2018 and had had sufficient time to organise representation, if that were possible. I considered it very unlikely that he would secure representation if more time were granted given that he had not obtained representation up until that point. I accepted that it was to his prejudice to be unrepresented on an application of such great moment to him and in which his whole future hangs in the balance. However, there are limits to what I can do and his case must be heard. If I had thought that any good would come of it I would have granted him the adjournment he sought. However, I was not satisfied that any good would come of it. Consequently, I refused the adjournment application.

6    The Applicant did not address legal argument to the Court which is hardly surprising given his background but he did emphasise the significance of the decision to him, the difficulties for him if he were returned to Jordan (i.e. being tortured to death), his love for his children from whom he would be certainly separated if the visa cancellation stands, and his regret over the circumstances which had brought him to the present juncture (i.e. hitting a man in the head with an axe). He also stressed that he would not reoffend.

7    Of course, none of these points is relevant to the legal issue at hand which is whether the Minister’s decision is afflicted by a jurisdictional error or otherwise reviewable. I do not mean by that to suggest his submissions were not important and I accept that the Applicant was genuine in what he said. I accept that he is in a most unfortunate situation.

8    I have examined the matter closely. The only legal issue which appears to present itself concerns non-refoulement. The Minister dealt with this issue at [23]-[34]. He noted the Applicant’s submission that he would face harm and grave danger if returned to his home country as he was targeted and had previously suffered prolonged torture as a political prisoner in Jordan.

9    He then reasoned as follows:

23.    As part of his representations seeking revocation of the original decision to cancel his visa, [the Applicant] submits that he will face harm and grave danger if returned to his home country as he was targeted and had suffered prolonged torture as a political prisoner in Jordan.

24.    I accept that [the Applicant] was found to engage Australia's protection obligations and he was granted a Protection visa on 14 September 1995.

25.    I note the psychologist report of 14 September 2015 which states that [the Applicant] continues to harbour fears of harm, should he be returned to Jordan, as he was imprisoned by the Jordanian Intelligence Service for ten months without charge when he was 23, and tortured for information about his family's involvement with the Hamas movement.

26.    I have taken into account that [the Applicant] was kept in a small windowless cell, interrogated, beaten, abused, handcuffed to a steel bed frame and electrocuted with jumpstart leads. His toenails were pulled out. He was hung by the arms for long periods of time until he thought his arms would rip from his shoulders and objects, including glass bottles, were inserted into his anus.

27.    I acknowledge that [the Applicant] continues to experience anxiety and has nightmares of his past trauma in Jordan. I note that he showed significant emotional distress when reminded by his psychologist of the violence and brutality he had experienced in his past.

28.    I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of [the Applicant] for the purposes of the present decision as he is able to make a valid application for another Protection visa, in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application.

29.    A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country.

30.    I am aware that the Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, Minister Dutton has given a direction under s499 of the Act (Direction 75) requiring that decision makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s501.

31.    I consider it highly likely that any Protection visa application will be considered by a delegate, and I note that such a delegate will be bound by the terms of Direction 75.

32.    In those circumstances, I consider it unnecessary to determine whether non-refoulement obligations are owed in respect of [the Applicant] for the purposes of the present decision as he is able to make a valid application for a Protection visa. In the (highly likely) case that such an application is considered by a delegate, non-refoulement obligations would be considered in the course of processing the application.

33.    I have also considered and taken into account the possibility that it may be the case that the Minister at that time personally considers [the Applicant]'s Protection visa application, rather than a delegate. In such a case, the Minister would not be bound by Direction 75 and would not necessarily determine whether non-refoulement obligations are owed in respect of [the Applicant]. However, such a situation would only arise in the unlikely event that the Minister determines to depart from the usual practice regarding the processing of Protection visa applications and determines further to depart from the policy approach set out in Direction 75. I have nevertheless taken into account the fact that that is a possible consequence of my decision, albeit an unlikely one.

34.    I have also considered [the Applicant]'s claims of harm upon return to Jordan outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the Applicant]'s claims are such as to engage non-refoulement obligations, he would face hardship arising from his family’s involvement with the Hamas movement, were he to return to Jordan.

10    Apart from [34], this is identical in structure to the Minister’s decision at issue in Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216 (‘Ezegbe’). As I explained in that case, paras [28]-[33] of the Minister’s reasons are legally effective and not open to legal challenge. In Ezegbe I did however conclude that the Minister had erred in failing to consider the risk of harm to Mr Ezegbe if he were returned to Nigeria outside the context of non-refoulement, i.e., as ‘another reason’ for revocation of the cancellation decision under s 501CA(4)(b)(ii). However, in the present case, para [34] has been added to what appears to be a standard template set of reasons so that this argument has now been addressed and is no longer available.

11    I am unable to discern any other errors in the Minister’s reasons. The application will be dismissed with costs.

Associate:

Dated:    1 March 2019