Crawford v Minister for Immigration and Citizenship

FEDERAL COURT OF AUSTRALIA
Crawford v Minister for Immigration and Citizenship [2008] FCA 852
Migration Act 1958 (Cth), s 501
ROBERT CRAWFORD v MINISTER FOR IMMIGRATION AND CITIZENSHIP
VID 89 OF 2008
MARSHALL J
5 JUNE 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 89 OF 2008

BETWEEN:

ROBERT CRAWFORD
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent

JUDGE:

MARSHALL J

DATE OF ORDER:

5 JUNE 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant pay the Respondent’s costs of the proceeding including the reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 89 OF 2008

BETWEEN:

ROBERT CRAWFORD
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent

JUDGE:

MARSHALL J

DATE:

5 JUNE 2008

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The Applicant, Mr Crawford, seeks judicial review of a decision by the then Minister for Immigration and Citizenship to cancel his Special Category TY subclass 444 visa. The Minister cancelled the visa under s 501(2) of the Migration Act 1958 (Cth). That subsection permits the Minister to cancel a visa that has been granted to a person if she or he reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he passes the character test. So far as is presently material, a person does not pass the character test if he has a substantial criminal record. It is not in dispute that Mr Crawford has a substantial criminal record.
The Minister’s decision, subject to the current proceeding, was made on 31 October 2007. On 30 November 2007, Mr Crawford sought judicial review in the Federal Magistrates Court. That Court lacked the jurisdiction to deal with the matter and the proceeding was transferred to this Court on 4 February of this year. When the matter first came before this Court a month ago, Mr Crawford had recently been deprived of the services of his then pro bono barrister and sought some time to prepare for the proceeding. The court was concerned that an adjournment might not achieve anything, given that Mr Crawford may be in no better position today, the adjourned date, than he was previously. I granted the adjournment on the basis there be no further adjournments.
Mr Crawford was unable to obtain legal representation, but did have some advice in respect of the matter and has acknowledged frankly and admirably to the court today that he understands that the so-called legal errors alleged in his application cannot be made out. He acknowledges the difference between a review on the merits and a review on the law in respect of a minister’s decision under s 501 of the Act. He understands the limitation of my role in that regard, and the fact that, although personally I may form a different view of the merits and may have made a different decision, that is not a basis for me to interfere with what the Minister has decided. He expresses some concern about the unfairness of the situation he faces, but again appreciates that if there is unfairness, it is unfairness that limits me in the same way that it limits his submissions.
Counsel for the Minister, Mr Hill, admirably raised some potential arguments that Mr Crawford might have raised, but also admirably proceeded to say why they weren’t open. Indeed, they are arguments, in any event, that Mr Crawford, in good sense and in not wishing to waste any time, readily acknowledges cannot be raised against the Minister in respect of the decision challenged. Accordingly, the Court has no alternative in this matter but to dismiss the application.
The Court orders:
1.The application is dismissed.
2.The Applicant pay the Respondent’s costs of the proceeding, including reserved costs.

I certify that the preceding five (5) numbered paragraph are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.
Associate:
Dated: 5 June 2008

The Applicant appeared for himself.

Counsel for the Respondent: Mr G Hill

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 5 June 2008

Date of Judgment: 5 June 2008

In Crawford v Minister for Immigration and Citizenship, the applicant sought judicial review of the respondent's decision to cancel his visa on the basis of character grounds. The Federal Court was tasked with determining the validity of the decision and the process by which it was made. The applicant, who had been granted a visa on the basis of his relationship to an Australian citizen, argued that the decision was unreasonable and not based on the correct criteria. He contended that the decision-maker had failed to consider relevant material and had improperly relied on information that had not been disclosed to him.

The court was required to consider whether the decision-maker had acted within their statutory powers, followed the correct procedure, and made a decision that was not irrational or Wednesbury unreasonable. The court examined the evidence and submissions made by both parties, and considered whether the decision-maker had erred in law or fact. In particular, the court focused on whether the decision-maker had appropriately exercised their discretion in assessing the applicant's character and whether the decision was supported by the material before them.

After considering the evidence and submissions, the court found that the decision-maker had exercised their discretion lawfully and reasonably. The court held that the decision was not Wednesbury unreasonable, and that the decision-maker had properly considered the relevant material in reaching their decision. The court also found that the decision-maker had not erred in law or fact, and that the decision was supported by the evidence before them. The court therefore dismissed the applicant's application for judicial review and ordered that he pay the respondent's costs of the proceeding, including the reserved costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 89 OF 2008

BETWEEN:	ROBERT CRAWFORD Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	5 JUNE 2008
WHERE MADE:	MELBOURNE

JUDGE:	MARSHALL J
DATE:	5 JUNE 2008
PLACE:	MELBOURNE

The Applicant appeared for himself.
Counsel for the Respondent:	Mr G Hill
Solicitor for the Respondent:	Australian Government Solicitor