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Chukwuma and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Chukwuma and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Case [2022] AATA 2653 19 August 2022

Statutory Construction

Immigration

Administrative Law

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Chukwuma and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2653 (19 August 2022)
Division:GENERAL DIVISION
File Number:2022/4417
Re:Joseph Chukwuma
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member J Rau SC
Date:19 August 2022
Place:Adelaide

The decision under review is set aside and substituted with a decision to revoke the cancellation of the Applicant’s visa.
.................[sgnd]...........................
Senior Member J Rau SC
Catchwords
MIGRATION – mandatory cancellation of Class BB Subclass 155 Five Year Return visa under section 501(3A)- where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501CA (4) should be exercised –possibility of indefinite detention considered- consideration of Ministerial Direction No. 90 - decision under review is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked
Legislation
Migration Act 1958 (Cth)
Cases
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
Plaintiff M1/2021 Minister for Home Affairs [2022] HCA 17
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau SC
19 August 2022
INTRODUCTION
1. The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA (4) of the Migration Act 1958 (Cth) (“the Act”) on 30 May 2022, not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Return visa (“the Visa”). The visa was cancelled on 16 November 2017, under section 501 (3A), on the basis that he did not pass the character test.
2. Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of his conviction on 14 October 2016 and sentence to imprisonment for 9- and one-half years. This offending took place when he was on parole for an earlier drug offence.[1]
[1] Exhibit 4, G4, Attachment A, p 24 and G4, Attachment B, pp 26-31.
3. The Applicant quite properly concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory cancellation of the visa pursuant to s 501CA(4)(b)(ii) of the Act.
4. The hearing was held on 10 and 11 August 2022. The…

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

AGLC: Chukwuma and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2653
Case: [2022] AATA 2653
Decision Date: 19 August 2022

CaseChat Overview and Summary

The applicant, Mr. Chukwuma, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to mandatorily cancel his Class BB Subclass 155 Five Year Return visa under section 501(3A) of the *Migration Act 1958* (Cth). The cancellation was based on Mr. Chukwuma failing to pass the character test due to having a substantial criminal record. The primary dispute concerned whether the discretion to revoke this cancellation under section 501CA(4) of the Act should have been exercised in his favour. The matter was heard by Senior Member J Rau of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the delegate of the Minister had erred in exercising the discretion under section 501CA(4) by failing to revoke the mandatory visa cancellation. This involved considering whether the delegate had properly taken into account all relevant considerations, including the potential for indefinite detention, and had given appropriate weight to the factors outlined in Ministerial Direction No. 90. The core legal issue was the proper application of the character provisions and the associated discretionary powers within the *Migration Act*.

In its reasoning, the Tribunal found that the delegate had failed to adequately consider the implications of indefinite detention for Mr. Chukwuma, a factor of significant weight. Furthermore, the Tribunal concluded that the delegate had not properly applied the principles set out in Ministerial Direction No. 90, particularly concerning the assessment of risk and the applicant's rehabilitation. Consequently, the Tribunal determined that the decision to refuse to revoke the visa cancellation was affected by jurisdictional error. The Tribunal set aside the delegate's decision and substituted it with a decision that the cancellation of Mr. Chukwuma's visa be revoked.

Orders