DALLA v Minister for Immigration

[2016] FCCA 1342

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALLA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1342

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – subclass 050 bridging visa – whether the Tribunal failed to give adequate reasons for its decision – no jurisdictional error identified – application dismissed.

Legislation:

Crimes Act 1900 (NSW) s.192(j)

Criminal Code Act1995 (Cth) Schedule, cl.400.9(1)(a)

Migration Act 1958 (Cth) ss.116(1)(g), 476

Migration Regulations 1994 (Cth) regs.2.43(1)(p), (q)

Cases cited:

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: IMAD DALLA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 166 of 2016

Judgment of: Judge Street

Hearing date: 2 June 2016

Date of Last Submission: 2 June 2016

Delivered at: Sydney

Delivered on: 2 June 2016

REPRESENTATION

Counsel for the Applicant: Mr A Moutasallem

Counsel for the Respondents: Ms A Mitchelmore

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The amended application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $3000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 166 of 2016

IMAD DALLA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 21 December 2015 affirming a decision of the delegate made on 10 December 2015 to cancel the applicant’s subclass 050 bridging (general visa). This visa application had been the subject of an earlier decision of a Tribunal remitting the matter for further determination.

2. That decision was dated 9 December 2015.  That decision took into account what was described to be good character evidence from a friend who said he knew the applicant was facing criminal charges but did not know any of the details.  No probative character evidence is given by a person who does not describe knowledge of the criminal charges in respect of which the person is faced. 

3. Notwithstanding that, the Tribunal of 9 December 2015 based on that material found the applicant was of good character and quashed an earlier decision in relation to the cancellation of the applicant’s subclass 050 bridging (general) visa.  The material provided by Mr Ziad Sod was not capable of being described as character evidence.  It was certainly not capable of being described as good character evidence and that finding was unsupported by the evidence.  It was not character material that should have been treated as establishing good character by the Tribunal. Be that as it may, this does not impact on the issue that arises in the present case. 

4. In the present case the delegate on 10 December cancelled the visa under s.116(1)(g) of the Migration Act 1958 on the basis that the applicant had been charged with a criminal offence in New South Wales. The Tribunal had before it the fact sheet in relation to two offences in respect of the applicant. The first was an offence against cl.400.9(1)(a) in the Schedule to the Criminal Code Act1995 (Cth) possessing suspected proceeds of crime, being money.

5. The second was an offence under s.192(j) of the Crimes Act 1900 (NSW) dealing with identity information to commit an indictable offence. The fact sheet records relevantly in relation to the second charge that during the search of the applicant’s possessions the Australian Border Force located in addition to substantial funds three mobile telephone handsets. The fact sheet records that on two of those handsets the AFP located approximately 32 individual identification material from various financial institutions.

6. The fact sheets record that that identification material included but was not limited to credit card numbers, debit MasterCard numbers, personal bank accounts, dates of birth, mobile telephone numbers, New South Wales drivers licences, personal addresses, personal email addresses, online banking logins and various financial information.  The fact sheet records that one of the photographs contained details in relation to a person who had reported her handbag having been stolen and in relation to her bank accounts, the relevant bank confirmed reporting of fraudulent transactions on individual accounts. 

7. The Tribunal invited the applicant to appear before it on 17 December 2015 and the applicant appeared on the date to give evidence and present arguments. The Tribunal identified that the relevant issue in the present case was whether the ground for cancellation is made out and whether, if so, the visa should be cancelled. 

8. The Tribunal identified “for the following reasons the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.” The Tribunal then set out reasons considering whether or not the grounds for cancellation exists and the Tribunal found it was satisfied that the ground for cancellation in s.116(1)(g) of the Migration Act 1958 exists.  The Tribunal noted that ground did not require a mandatory cancellation and that the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

9. The Tribunal then had a heading, ‘Consideration of Discretion’, and identified a direction, no.63, to which the Tribunal was required to have regard.  The Tribunal noted in that regard expressly what the primary considerations were and noted that this included the Government’s view that the prescribed grounds for cancellation at regs.2.43(1)(p) and (q) of the Migration Regulations 1994 should be applied rigorously and that every instance of non-compliance should be considered for cancellation.  The Tribunal also identified the secondary considerations in accordance with that direction.  The Tribunal expressly recorded having due regard to those considerations.  The Tribunal also made reference to the fact that at the hearing it identified the applicant did not have to answer questions about the charges against him given his privilege against self-incrimination.

10. The Tribunal made reference to the fact sheet and on this occasion the Tribunal received evidence from the applicant’s uncle, Mohamad Ramadan. The Tribunal identified the application of the applicant to his study. The Tribunal also identified personal circumstances relating to the applicant’s family.  The Tribunal identified the potential impact on the applicant of being detained and the applicant’s desire to remain in the community. The Tribunal also expressly referred to taking into account the applicant’s uncle’s evidence that he would be prepared to assist in any way. 

11. The Tribunal concluded that while there were reasons for exercising the discretion in favour of not cancelling the visa, considering all the circumstances as a whole and having regard to the primary and secondary considerations set out in the Minister’s direction, the Tribunal concluded that the visa should be cancelled. In those circumstances the Tribunal affirmed the decision and cancelled the applicant’s Subclass 050 Bridging (General) visa.

12. The grounds of the amended application are as follows

    1. The Tribunal acted without and in excess of jurisdiction in failing to give adequate reasons for its decision in the manner identified in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

    Particulars

    a) The Tribunal decision lacked an evident and intelligible justification for concluding that the visa should be cancelled. Without such an evident and intelligible justification the decision was unreasonable.

    b) The Tribunal failed to adequately address how and why it exercised its discretion in favour of cancelling the visa.

13. To the extent that the submissions by counsel on behalf of the applicant asserted that the decision of the Tribunal was one in respect of which there were no reasons. That submission is without substance. 

14. It is apparent that the Tribunal gave reasons in relation to its discretionary engagement with the statutory discretion and those reasons cannot be said to lack an evident and intelligible justification. 

15. The reasons given by the Tribunal were not unreasonable.  No jurisdictional error of the kind alleged in ground 1 is made out.  The amended application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  16 June 2016