Crisp v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FCA 252
•18 March 2024
FEDERAL COURT OF AUSTRALIA
Crisp v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 252
Review of: Crisp v Minister for Immigration, Citizenship and Multicultural Affairs (Administrative Appeals Tribunal, No. 2023/4798, 30 August 2023) File number: WAD 259 of 2023 Judgment of: COLVIN J Date of judgment: 18 March 2024 Legislation: Crimes Act 1914 (Cth) ss 85ZR, 85ZS
Migration Act 1958 (Cth) ss 477A, 501, 501CA
Children (Criminal Proceedings) Act 1987 (NSW) s 14
Cases cited: Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506
VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 9 Date of hearing: Determined on the papers Counsel for the Applicant: Mr Z Zarifi Solicitor for the Applicant: Zarifi Lawyers Counsel for the First Respondent: Ms B Rayment Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
WAD 259 of 2023 BETWEEN: ANTHONY CRISP
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
COLVIN J
DATE OF ORDER:
18 MARCH 2024
BY CONSENT THE COURT ORDERS:
1.The decision of the second respondent dated 30 August 2023, affirming the decision by a delegate of the first respondent dated 26 June 2023 not to revoke the cancellation of the applicant's visa be set aside.
2.The matter be remitted to the second respondent for redetermination according to law.
3.The first respondent pay the applicant's costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
Mr Crisp's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) on the basis that he was a person serving a term of imprisonment of 12 months or more. His request that the power under s 501CA(4) to revoke the cancellation be exercised in his favour was refused by a delegate of the Minister. Mr Crisp sought review in the Administrative Appeals Tribunal. The Tribunal affirmed the decision of the delegate.
Mr Crisp now seeks review of the Tribunal's decision by this Court on the basis of alleged jurisdictional error. Any such application must be commenced within 35 days of the Tribunal's decision: s 477A(1). Although an extension of time of one day was sought by Mr Crisp, I am satisfied that the application was brought within time and an extension is not required.
One of the grounds of review that Mr Crisp seeks to raise is to the effect that the Tribunal was in error in taking into account his history of offending as a juvenile.
Since the Tribunal's decision, the High Court has delivered its reasons in Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6. In that case, the Court considered the consequences of the terms of s 14(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW) for a decision by a delegate of the Minister to cancel a visa under s 501(2) of the Migration Act. Section 14(1)(a) precluded the Children's Court from proceeding to, or recording, any conviction for offences in the Children's Court of New South Wales where a person was under 16 years of age.
Beech-Jones J (Gageler CJ, Gordon J, Edelman J and Gleeson J agreeing) found that the delegate was precluded by s 85ZR and s 85ZS of the Crimes Act 1914 (Cth) from taking into account the Children's Court offences. Further, as it was accepted by the Minister that those offences were material to the delegate's decision, the decision was found to be affected by jurisdictional error and certiorari issued quashing the visa cancellation decision.
The Minister concedes that the same reasoning applies to the Tribunal's decision in the present case. The Minister also concedes that the Tribunal's error was material to its decision in that there is a realistic possibility that the decision could have been different had the error not occurred: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [2] (Kiefel CJ, Gageler, Keane and Gleeson JJ). As the Tribunal reasoned in part by reference to the applicant's history of offending as a juvenile there is a proper basis for that concession.
In those circumstances, the Minister consents to orders setting aside the Tribunal's decision and remitting the matter for redetermination according to law. The Minister also accepts that there should be an order for costs in favour of Mr Crisp.
Even where the proper contradictor to an application for judicial review consents to the grant of relief, the Court must be satisfied that there is error. Further, there is a public interest that requires the Court to specify the error and its satisfaction that an error has occurred which justifies the proposed relief being granted within the public law jurisdiction of the Court: see my reasoning in VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [3]‑[6].
For reasons I have given, I am satisfied that there should be orders by consent in the terms proposed. There will be orders accordingly.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate:
Dated: 18 March 2024
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