Broadbent v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Broadbent v Minister for Home Affairs [2020] FCA 1626   

File number: VID 454 of 2020
Judgment of: SC DERRINGTON J
Date of judgment: 12 November 2020
Catchwords:

MIGRATION – judicial review of cancellation of visa on character grounds by Minister personally – request for revocation of cancellation decision under s 501CA of the Migration Act 1958 (Cth) – whether Minister lacked power to revoke – whether decision to revoke can only be made by person who made s 501(3A) decision – whether Minister’s decision affected by jurisdictional error for failing to consider evidence of significance to applicant’s citizenship – where no representations made in relation to any such evidence

MIGRATION – applicant in detention prevented from attending hearing by video link – whether breach of s 256 of Migration Act 1958 (Cth)
Legislation:

Acts Interpretation Act 1901 (Cth) s 19

Evidence Act 1995 (Cth) s 174

Migration Act 1958 (Cth) ss 195A, 198(5), 256, 476A, 500A(1), 500A(3), 501(1), 501(2), 501(3), 501(3A), 501A, 501A(2), 501A(3), 501B(1), 501B(2), 501BA(1), 501BA(2), 501C(1), 501CA(1), 501CA(4)

Cases cited:

AEM20 v Minister for Home Affairs [2020] FCA 623

Ali v Minister for Home Affairs [2020] FCAFC 109

Australian Competition and Consumer Commission v PT Garuda (No 9) [2013] FCA 323; 212 FCR 406

Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353

AXT19 v Minister for Home Affairs [2020] FCAFC 32

BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94

Buck v Bavone (1976) 135 CLR 110

DQM18 v Minister for Home Affairs [2020] FCAFC 110

EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; (2019) 272 FCR 409

GBV18 v Minister for Home Affairs [2020] FCAFC 17 (2020) 274 FCR 202

Marzano v Minister for Immigration and Border Protection [2016] FCA 1180

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548

Minister for Immigration & Multicultural & Indigenous Affairs v Watson [2005] FCAFC 181; (2005) 145 FCR 542

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

MacCormick v Federal Commissioner of Taxation (1945) 71 CLR 283

Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643

Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259

Moana v Minister for Immigration and Border Protection [2019] FCA 659; (2019) 265 FCR 337

Nielson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331

Noza Holdings Pty Ltd (ACN 098 410 881) v Commissioner of Taxation [2010] FCA 990; (2010) 273 ALR 621

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531
Division: General Division
Registry:
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Details
Case
[2020] FCA 1626
Decision Date

CaseChat Overview and Summary

The case of Broadbent v Minister for Home Affairs involves an application for judicial review by the applicant, Broadbent, against the Minister for Home Affairs regarding the cancellation of his visa on character grounds. The application was heard by the Federal Court of Australia. Broadbent, an Australian resident with a significant criminal history, sought to challenge the Minister's decision not to revoke the cancellation of his visa. The primary issues before the court were whether the Minister had the authority to revoke the cancellation of Broadbent’s visa under section 501CA of the Migration Act 1958 (Cth), and if the Minister had failed to consider evidence pertinent to Broadbent's citizenship status, which could have affected the decision.

The court first examined the statutory framework of section 501CA, which outlines the circumstances under which the Minister can revoke a visa cancellation decision. The court determined that the power to revoke a visa cancellation decision is indeed vested in the Minister, and that the Minister's decision not to revoke was not subject to judicial review unless specific conditions were met. Furthermore, the court found that the Minister's decision was not flawed by jurisdictional error for failing to consider evidence of Broadbent's citizenship, as no representations were made by Broadbent regarding this evidence. The court held that the Minister's decision was valid and appropriately exercised, and thus dismissed the application. Consequently, the application for judicial review was dismissed, and Broadbent was ordered to pay the respondent's costs of the proceeding.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the proceeding, to be taxed if not agreed.

3. If any party seeks a variation of the costs order, the party may give written notice to the Court and the other party within three business days.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 501CA provided:(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.(2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:(a)would be the reason, or a part of the reason, for making the original decision; and(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.(3)As soon as practicable after making the original decision, the Minister must:(a)give the person, in the way that the Minister considers appropriate in the circumstances:(i)a written notice that sets out the original decision; and(ii)particulars of the relevant information; and(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.(4) The Minister may revoke the original decision if:(a)the person makes representations in accordance with the invitation; and(b)the Minister is satisfied:(i)that the person passes the character test (as defined by section 501); or(ii)that there is another reason why the original decision should be revoked.(5)If the Minister revokes the original decision, the original decision is taken not to have been made.(6)Any detention of the person that occurred during any part of the period:(a)beginning when the original decision was made; and(b)ending at the time of the revocation of the original decision;is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.(7)A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.Background The following summary of the facts is based on the documents in the Court Book filed on 1 September 2020. The applicant was born to British national parents in North Rhodesia (now Zambia) in May 1958. Together with his family, the applicant left North Rhodesia around 1964 and travelled to England, where the family lived for approximately one year before migrating to Australia. He arrived in Australia on 5 October 1965, aged seven, with his parents and siblings, and has not travelled out of Australia since that date. He is now aged 62. The applicant has two Australian children; a son, born in May 1993, and a daughter, born in May 2000. On 1 September 1994, the applicant was granted a Class BF Transitional (Permanent) visa. This visa was cancelled and reinstated twice, in 1999 and 2007. On 19 September 2008, the second cancellation decision was affected by an amendment to the Migration Act which resulted in the applicant becoming an unlawful non-citizen. On 5 May 2009, the Minister granted the applicant the Visa the subject of these proceedings under s 195A of the Migration Act to enable him to continue as the full-time carer for his father.

Ratio Decidendi

Legal Principle Established

This is an application for judicial review, pursuant to s 476A of the Migration Act1958 (Cth) (Migration Act), of a Decision made on 25 February 2020 by the Minister of Home Affairs, pursuant to sub-s 501CA(4) of the Migration Act, not to revoke the cancellation of the applicant’s Class WR Subclass 070 Bridging R (Removal Pending) Visa. On 24 January 2019, a delegate of the Minister cancelled the applicant’s Visa as required by s 501(3A) of the Migration Act. Between 1970 and 2019, the applicant accumulated a long criminal record, which included convictions on 13 August 2018 for which he was sentenced to an aggregate term of 14 months imprisonment. The delegate was satisfied that the applicant did not pass the character test in s 501(3A)(i) of the Migration Act on the ground of sub-s (6)(a) (substantial criminal record), on the basis of sub-s (7)(c) (sentence to a term of imprisonment of 12 months or more). By his Amended Originating Application filed on 21 September 2020, the applicant relies on two grounds:1.The Minister’s purported decision is invalid by reason that the Minister lacked power under s 501CA to revoke the cancellation of Mr Broadbent’s visa.2.The Minister erred by failing to consider, in the relevant legal sense, evidence of significance to the question of whether to revoke the cancellation of Mr Broadbent’s visa, namely that he is a citizen of Zambia as compared with being ‘eligible to citizenship of the United Kingdom’. For the reasons that follow, the application should be dismissed. Key legislative provisions It is convenient to set out the key legislative provisions of present relevance before setting out a summary of the facts. Section 501 of the Migration Act relevantly provided:(3A) The Minister must cancel a visa that has been granted to a person if:(a)the Minister is satisfied that the person does not pass the character test because of the operation of:(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or(ii)paragraph (6)(e) (sexually based offences involving a child); and(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. That provision referred, relevantly for present purposes, to paragraphs (6)(a) and (7)(c) of s 501, which provided as follows:(6) For the purposes of this section, a person does not pass the character test if:(a)the person has a substantial criminal record (as defined by subsection (7)); or…(7)For the purposes of the character test, a person has a substantial criminal record if: …(c)the person has been sentenced to a term of imprisonment of 12 months or more; or … Section 501CA provided:(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.(2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:(a)would be the reason, or a part of the reason, for making the original decision; and(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.(3)As soon as practicable after making the original decision, the Minister must:(a)give the person, in the way that the Minister considers appropriate in the circumstances:(i)a written notice that sets out the original decision; and(ii)particulars of the relevant information; and(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.(4) The Minister may revoke the original decision if:(a)the person makes representations in accordance with the invitation; and(b)the Minister is satisfied:(i)that the person passes the character test (as defined by section 501); or(ii)that there is another reason why the original decision should be revoked.(5)If the Minister revokes the original decision, the original decision is taken not to have been made.(6)Any detention of the person that occurred during any part of the period:(a)beginning when the original decision was made; and(b)ending at the time of the revocation of the original decision;is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.(7)A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.Background