Ali v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Ali v Minister for Home Affairs [2019] FCFCA 93

Appeal from: Ali v Minister for Home Affairs [2018] FCA 1895
File number: NSD 2302 of 2018
Judges: JAGOT, BURLEY AND LEE JJ
Date of judgment: 4 June 2019
Catchwords: MIGRATION – where visa cancelled pursuant to s 501(3A) Migration Act 1958 (Cth) – whether a sentence of imprisonment suspended on a bond to be taken into account for “substantial criminal record” pursuant to s 501(7)(c) Migration Act – whether mandatory considerations were taken into account by the Minister – appeal dismissed
Legislation:

Crimes (Sentencing Procedure) Act1999 (NSW) ss 5, 12

Migration Act 1958 (Cth) ss 501(3A)(a), (6)(a), (7), (8), (9), 501CA
Cases cited:

Ali v Minister for Home Affairs [2018] FCA 1895

Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113

Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1

O’Brien v R [2013] NSWCCA 197

R v Nahlous [2013] NSWCCA 90; 228 A Crim R 503

R v Ryan [2006] NSWCCA 394

R v Zamagias [2002] NSWCCA 17

Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146

VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588
Date of hearing: 23 May 2019
Registry: New South Wales
Division: General
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 33
Counsel for the Appellant: Mr J. Mitchell
Counsel for the First Respondent: Mr M. Cleary
Solicitor for the First Respondent: Clayton Utz
Counsel for the Second Respondent:  The Second Respondent filed a submitting notice, save as to costs

ORDERS

NSD 2302 of 2018
BETWEEN:

SHAMSHER ALI

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGES:

JAGOT, BURLEY AND LEE JJ

DATE OF ORDER:

4 JUNE 2019

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs.

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


REASONS FOR JUDGMENT

THE COURT:

  1. The appellant, Shamsher Ali, is a citizen of Fiji who arrived in Australia in 1988 when he was about 29 years old. He has resided here since that date and is now 60 years old. During his time in Australia Mr Ali worked full-time for a period of 20 years, until he sustained a severe work-related injury in 2009. Since then he has been unable to work and in recent years his partner has become his full-time carer.

  2. Mr Ali was convicted of a number of criminal offences between 1993 and 2017. On 16 June 2017, the Department of Home Affairs determined that Mr Ali met the requirements of ss 501(3A)(a) and (b) of the Migration Act 1958 (Cth), and subsequently cancelled his visa. The basis for…

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Details
Case
[2019] FCAFC 93
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Ali, the appellant, sought to appeal the decision of the Minister for Home Affairs, the respondent, to cancel his visa under section 501(3A) of the Migration Act 1958 (Cth). The central issue in this appeal was whether the Minister appropriately considered a suspended sentence of imprisonment when assessing whether Ali had a substantial criminal record, as required by section 501(7)(c) of the Act. This consideration was crucial as it determined whether Ali's visa could be lawfully cancelled.

The court examined whether the Minister had considered all mandatory factors outlined in section 501CA of the Act, particularly focusing on the relevance of the suspended sentence. It was established that the Minister did take into account the suspended sentence, as evidenced by the detailed reasoning in the decision-making process. The court found that the Minister had indeed assessed the relevant circumstances, including the suspended sentence, and had balanced these with other considerations, such as the public interest and Ali's circumstances. Consequently, the court held that the Minister's decision was lawful and appropriately considered the statutory requirements.

Given the court's findings that the Minister had correctly applied the law and considered all relevant factors, the appeal was dismissed. The appellant was ordered to pay the respondent's costs, in accordance with Rule 39.32 of the Federal Court Rules 2011. This ruling underscores the importance of a thorough and legally sound assessment by the Minister in cases involving visa cancellations due to criminal conduct.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the first respondent’s costs.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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