Bethell v Minister for Home Affairs

FEDERAL CIRCUIT COURT OF AUSTRALIA

BETHELL v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1740

Catchwords:
MIGRATION– review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.116

Applicant: KARL ANTONY BETHELL

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1030 of 2018

Judgment of: Judge Vasta

Hearing date: 23 May 2019

Date of Last Submission: 23 May 2019

Delivered at: Brisbane

Delivered on: 23 May 2019

REPRESENTATION

Counsel for the Applicant: Mr Morris QC

Counsel for the First Respondent: Mr Byrnes

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application filed 9 October 2018 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

IT IS NOTED:

A.  That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1030 of 2018

KARL ANTONY BETHELL

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNLA

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 11 September 2018, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision to cancel the subclass 457 temporary work skilled visa of the Applicant, Karl Antony Bethell.  On 9 October 2018 Mr Bethell filed an originating application in this Court seeking that there be judicial review of that decision of the AAT.

2. In short compass, the background of this matter is this. The Applicant came to Australia on 2 January 2013 on that 457 visa sponsored by QGC Shell Group.  That visa was due to have expired on 2 January 2017. 

3. The Applicant had, on that visa, his wife and his two children, one of whom is his biological child and the other is the biological child of his wife only.  Whilst in Australia the relationship between the Applicant and his wife, Ms Taylor, broke down.  The Applicant was charged with a number of offences.

4. On the basis of the fact of his being charged, it then fell to the Minister to consider whether the visa ought be cancelled. Section 116 of the Migration Act 1958 (Cth) (“the Act”) says:

   116 Power to cancel

   (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   …

   (e) the presence of its holder in Australia is or may be, or would or might be, a risk to:

   (i) the health, safety or good order of the Australian community or a segment of the Australian community; or

   (ii) the health or safety of an individual or individuals; or

5. In this case, the Tribunal had access to the Queensland Police documents which indicated the short facts upon which the charges were brought.  The Tribunal asked the Applicant, through his then…