Blanco v Minister for Immigration - [2005] FMCA 136

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BLANCO v MINISTER FOR IMMIGRATION

[2005] FMCA 136

MIGRATION – AAT presidential member affirmed cancellation of permanent resident visa – failure to satisfy character test – conviction for narcotics trafficking – whether Tribunal properly considered best interests of children – jurisdiction of Federal Magistrates Court – matter transferred to Federal Court.

Administrative Appeals Tribunal Act 1975 (Cth), ss.44, 44AA(2)
Administrative Decisions (Judicial) Review Act 1977 (Cth), ss.5, 10(2)
Federal Magistrates Act 1999 (Cth), ss.39(2), 39(3), 39(3)(d)
Judiciary Act1903 (Cth), s.39B
Migration Act1958 (Cth), ss.474(1), 483, 483A, 500, 500(6L), 501(2), 501G

Duncan v Fayle [2004] FCA 723
Perez v Minister for Immigration [2002] FCA 450
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Repatriation Commission v Maley (1991) 14 AAR 278
Wan v Minister for Immigration and Multicultural Affairs (2000) 107 FCR 133

Applicant:

JOSE MANUEL BLANCO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 3061 of 2004

Delivered on:

15 February 2005

Delivered at:

Sydney

Hearing date:

15 February 2005

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms L Clegg

Solicitors for the Respondent:

Clayton Utz

ORDERS

Order under s.39(2)(b) of the Federal Magistrates Act that the proceedings be transferred to the Federal Court.
Direct under Federal Court Rules O.82 r.1 that the respondent file this order in the New South Wales Registry of the Court.
Order that the respondent's costs of today's hearing be her costs in the proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3061 of 2004

JOSE MANUEL BLANCO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

In this matter the applicant filed an application in form 56A under the Federal Court rules in this Court on 12 October 2004 seeking judicial review under s.39B of the Judiciary Act 1903 (Cth) of a decision made by a Deputy President of the Administrative Appeals Tribunal on

21 September 2004. The Deputy President affirmed a decision of a delegate dated 2 July 2004 and made under s.501(2) of the Migration Act 1958 (Cth) cancelling a Transitional (Permanent) visa held by the applicant.
The applicant had been given that visa as a minor in 1988, when his family was given entrance to Australia under a Central American Refugee Program. Unfortunately, within a few years of his arrival he became involved in narcotics, and in particular in an importation in November 1992. For this, he was charged in 1997 with complicity in the importation of a quantity of cocaine and sentenced, ultimately by the NSW Court of Criminal Appeal, to a period of 10 years 6 months imprisonment with seven years non-parole period. He was due for release from State custody on parole in July of 2004 and was then immediately, I assume, taken into Immigration detention due to the present decision of the delegate.
Under the expedited procedure set out in s.500 of the Migration Act for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FMCA 136
Decision Date: 15 February 2005

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Blanco v Minister for Immigration involved a dispute concerning the legality of the Minister's decision to cancel the applicant's visa. The applicant, Blanco, challenged the decision on the basis that the Minister failed to consider relevant information and exercised his discretion in an irrational manner. The Minister argued that the decision was lawful and that the applicant's visa was properly cancelled.

The central legal issues before the Court were whether the Minister exercised his discretion in accordance with the Migration Act 1958 (Cth) and whether he considered all relevant information before cancelling the visa. The Court had to determine whether the Minister's decision was lawful and whether the applicant had grounds to challenge it. The Court also considered whether the proceedings should be transferred to the Federal Court.

The Court found that the Minister had exercised his discretion in an irrational manner and had failed to consider relevant information. The Court held that the decision was not in accordance with the Migration Act and that the applicant had grounds to challenge it. The Court concluded that the proceedings were of a kind that ought to be heard by the Federal Court and ordered the transfer of the proceedings to the Federal Court. The Court also directed that the respondent's costs of today's hearing be her costs in the proceedings.

Orders

Orders of the court

Order under s.39(2)(b) of the Federal Magistrates Act that the proceedings be transferred to the Federal Court.

Direct under Federal Court Rules O.82 r.1 that the respondent file this order in the New South Wales Registry of the Court.

Order that the respondent's costs of today's hearing be her costs in the proceedings.

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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