FEDERAL COURT OF AUSTRALIA
DFW18 v Minister for Home Affairs [2019] FCA 599
Appeal from: DGPZ and Minister for Home Affairs (Migration) [2018] AATA 469 File number: VID 743 of 2018 Judge: STEWARD J Date of judgment: 2 May 2019 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision not to revoke a visa cancellation – where applicant’s visa cancelled on character grounds – whether Tribunal erred by constructively failing to exercise jurisdiction or failing to consider the applicant’s claim – whether the Tribunal erred by failing to apply the correct test when assessing the risk posed to the Australian community – whether Tribunal failed to take into account a mandatory consideration when assessing the risk posed to the Australian community – whether the Tribunal erred by failing to take into account relevant considerations – whether the Tribunal erred by making findings not supported by any evidence Legislation: Migration Act 1958 (Cth) ss 499, 501, 501CA Cases cited: Ali v Minister for Immigration and Border Protection [2018] FCA 650
Applicant in WAD531/2016 v Minister for Immigration and Border Protection [2018] FCAFC 213
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Omar v Minister for Home Affairs [2019] FCA 279
Salahuddin v Minister for Immigration and Citizenship [2013] FCA 588
Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162
SZTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452
Date of hearing: 13 March 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 61 Counsel for the Applicant Ms S Kelly Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr W Mosley Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
VID 743 of 2018 BETWEEN: DFW18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
STEWARD J
DATE OF ORDER:
2 MAY 2019
THE COURT ORDERS THAT:
1.The application for an extension of time be granted.
2.The decision of the second respondent dated 13 March 2018 be set aside and the matter be remitted to the second respondent for reconsideration according to law.
3.The first respondent pay the applicant’s costs of the application as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
STEWARD J:
The applicant is a Turkish national. On…
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Details
- Case
- [2019] FCA 599
- Decision Date
CaseChat Overview and Summary
The case of DFW18 v Minister for Home Affairs involved the applicant, a Turkish national, who sought judicial review of the decision of the Administrative Appeals Tribunal (the "Tribunal") to affirm a decision not to revoke a visa cancellation. The applicant's visa was cancelled on character grounds, and the Tribunal had considered the "primary considerations" and "secondary considerations" in Ministerial Direction No. 65. The applicant argued that the Tribunal had constructively failed to exercise jurisdiction, failed to consider his claim, applied the wrong test when assessing the risk posed to the Australian community, failed to take into account a mandatory consideration when assessing the risk posed to the Australian community, failed to take into account relevant considerations, and made findings not supported by any evidence.
The court considered the grounds of review before it and found that the Tribunal had indeed made errors in its application of Ministerial Direction No. 65. The Tribunal had failed to consider the applicant's prospects for rehabilitation and had not applied the correct test when assessing the risk posed to the Australian community. Additionally, the Tribunal had failed to take into account relevant considerations when assessing the risk posed to the Australian community. The court found that the Tribunal had made findings that were not supported by any evidence.
The court set aside the decision of the Tribunal and remitted the matter to the Tribunal for reconsideration according to law. The court also granted the applicant's application for an extension of time and ordered the Minister to pay the applicant's costs of the application as agreed or assessed. The case highlights the importance of the correct application of legal principles and the consideration of all relevant factors when making decisions in migration cases.
The court considered the grounds of review before it and found that the Tribunal had indeed made errors in its application of Ministerial Direction No. 65. The Tribunal had failed to consider the applicant's prospects for rehabilitation and had not applied the correct test when assessing the risk posed to the Australian community. Additionally, the Tribunal had failed to take into account relevant considerations when assessing the risk posed to the Australian community. The court found that the Tribunal had made findings that were not supported by any evidence.
The court set aside the decision of the Tribunal and remitted the matter to the Tribunal for reconsideration according to law. The court also granted the applicant's application for an extension of time and ordered the Minister to pay the applicant's costs of the application as agreed or assessed. The case highlights the importance of the correct application of legal principles and the consideration of all relevant factors when making decisions in migration cases.
Orders
Orders of the court
1. The application for an extension of time be granted.
2. The decision of the second respondent dated 13 March 2018 be set aside and the matter be remitted to the second respondent for reconsideration according to law.
3. The first respondent pay the applicant’s costs of the application as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The applicant is a Turkish national. On 3 February 2017 his Class BB Subclass 155 Five Year Resident Return Visa (the “Visa”) was cancelled by a delegate of the first respondent (the “Minister”) because the applicant did not pass the character test prescribed by s 501(6) of the Migration Act 1958 (Cth) (the “Act”). At that time, the applicant was serving a sentence of imprisonment. On 14 December 2017 another delegate of the Minister decided not to revoke that cancellation decision pursuant to s 501CA(4) of the Act. The applicant sought review of that decision in the Administrative Appeals Tribunal (the “Tribunal”). By a decision dated 13 March 2018, Member Maryniak, Q.C., affirmed the delegate’s decision. The applicant sought judicial review of that decision but was late in filing his application. The Minister very properly agreed to that extension of time.Background The applicant is around 53 years old. He arrived in Australia at the age of four. He was married in 1994 and has two adult children. In 2013 he divorced his wife and commenced a relationship with a woman who is intellectually disabled. He has lived in Turkey on occasion. For example, he lived in that country between 1982 and 1984. In 1989 he returned to Turkey to undertake compulsory military service. He was then sexually abused by another soldier. He returned to Australia in 1994 following marriage to his then wife. The applicant’s criminal record is very extensive. Between 1980 and 2015, he committed over 150 offences, and served some 18 terms of imprisonment. He has a string of convictions, amongst other things, for burglary, theft, assault, drug use, failing to answer bail, and unlicensed driving. These were all carefully surveyed by the Tribunal below. The longest sentence he received was 16 months, following his conviction for using a false document. The sentencing judge in 2010 observed that his then prospects for rehabilitation were “not good”. In 2015 the applicant committed a disgusting assault on his de facto partner. He repeatedly struck her with a garden fork causing shallow puncture wounds. He continued the assault in a bedroom using a large screwdriver to puncture her skin. He put his hands around her throat. He shook her. He tried to suffocate her with a pillow. He threatened her with a knife. She was left with over 100 injuries and required extensive hospital treatment. For this crime, for which he pleaded guilty, he received a sentence of eight months’ imprisonment and a community corrections order for 15 months following his release. The sentencing judge observed in 2016 that because of drug use, the applicant suffered from mental illness. He had a history of severe depressive episodes and at times of self-harm. He had also experienced family violence at the hands of his father. In 2016 he was diagnosed with a schizoaffective disorder. However, the sentencing judge also observed that since the assault the applicant appeared to be making “real changes” to his life, as a result of, amongst other things, his participation in certain programs. The judge observed that he needed to be guarded about any prospects of rehabilitation but, nonetheless, concluded that the applicant had “reasonably good prospects of rehabilitation”.Legislative Provisions
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Section 501CA of the Act provides:(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.The Tribunal’s Decision Pursuant to s 499 of the Act, the Tribunal applied the “primary considerations” and “secondary considerations” in Ministerial Direction No. 65. The grounds of review before me were really directed at what was said to be errors in the application of that Direction. The Tribunal considered the “primary considerations”, namely protection of the Australian community; the best interests of minor children in Australia; and the expectations of the Australian community. It made the following findings about these matters at [50], [51] and [53] (describing the applicant as “DGPZ”):In summary, I am satisfied that the risk of DGPZ committing further serious offences of the sort he has committed in the past is moderate and therefore unacceptable.…There are no minor children in Australia whose interests are relevant in this case.…In light of the evidence and parties’ submissions before the Tribunal, the number and frequency of DGPZ’s offences, the various ‘second chances’ Australia has extended to DGPZ throughout his life, including receipt and signed acknowledgement by him of a formal warning from the Department in 2011, I find that the Australian community would expect that DGPZ should not continue to hold a Visa. This is in spite of his unfortunate childhood and problems with mental health and illicit drug and alcohol abuse, which I accept.(Footnote omitted.)
Ratio Decidendi
Legal Principle Established
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