Full Court appeal win
On 2 December 2020, we had a very satisfying win for our client Mr R before the Full Court of the Federal Court of Australia in the matter of MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 215.
Mr R is a young man from South Sudan who came to Australia as a child on a refugee visa. After struggling with alcohol issues and committing a number of criminal offences, Mr R had his visa mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth). In his request for revocation of the mandatory visa cancellation, Mr R made representations about his fear that he would be killed due to the war if returned to South Sudan.
The Minister for Immigration decided (by a delegate) not to revoke the cancellation of Mr R’s visa. In the course of making this decision, the Minister determined that it was unnecessary to consider whether Mr R would be killed if returned to South Sudan as he could make an application for a protection visa. The Minister, importantly, did not call into doubt Mr R’s subjective fear of harm.
Mr R then applied to the Administrative Appeals Tribunal for review of the Minister’s decision. The AAT held a hearing where Mr R was present, gave evidence and made submissions. Mr R was not asked during the hearing whether he feared harm in South Sudan, or still feared that he would be killed. Prior to the hearing, the Minister made a contention, similar to the delegate’s finding, that the AAT did not have to consider the Applicant’s fear of harm or death as he could still apply for a protection visa and had not pressed any such claim.
The AAT did in fact consider Mr R’s claim to fear harm and death if returned to South Sudan. The AAT disposed of this claim by finding that it did not believe that Mr R had a genuine fear of harm. This was the first time Mr R’s subjective fear of harm had ever been questioned. The AAT ultimately found that the decision not to revoke the cancellation of Mr R’s visa was the correct one and affirmed the decision under review.
Mr R then applied to the Federal Court for judicial review of the AAT’s decision. Mr R was represented by pro bono lawyers. Unfortunately, the Federal Court ruled against Mr R and his pro bono lawyers withdrew from the record. Mr R then appealed the Federal Court’s judgment to the Full Court of the Federal Court, which is when we got involved.
We obtained the transcript of Mr R’s AAT hearing and amended his appeal notice. One of our grounds of appeal was that the AAT had denied Mr R procedural fairness by failing to put to him that it did not believe his claim to fear harm and death in South Sudan. This ground and 2 others were ultimately upheld in the Full Court of the Federal Court. Mr R will now get another chance to make his case in the AAT as to why the mandatory cancellation of his visa ought to be revoked.