Dunn v Minister for Immigration and Border Protection

[2016] FCA 489

FEDERAL COURT OF AUSTRALIA

Dunn v Minister for Immigration and Border Protection [2016] FCA 489

File number:

VID 827 of 2015

Judge:

NORTH ACJ

Date of judgment:

10 May 2016

Catchwords:

MIGRATION – automatic cancellation of Class TY Subclass 444 Special Category (Temporary) visa under s 501(3A) of Migration Act 1958 (Cth) – applicant convicted of serious crime and did not pass character test – decision to refuse to revoke cancellation under s 501CA(4) – exercise of discretion under s 501CA(4) – whether jurisdictional errors in decision of Minister – Held: no evidence for critical finding that if applicant reoffended he posed a risk to Australian community, amounting to jurisdictional error – decision of Minister quashed.

Legislation:

Acts Interpretation Act 1901 (Cth) s 25D

Migration Act 1958 (Cth) ss 501(3A), 501CA(4), 501G

Date of hearing:

17 March 2016

Date of last submissions:

28 April 2016

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

28

Counsel for the Applicant:

Mr G Gilbert

Solicitor for the Applicant:

Clothier Anderson & Associates

Counsel for the Respondent:

Mr R Knowles

Solicitor for the Respondent:

Australian Government Solicitor

ORDERS

VID 827 of 2015

BETWEEN:

CLIVE RONALD DUNN

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

JUDGE:	NORTH ACJ
DATE OF ORDER:	10 MAY 2016

THE COURT ORDERS THAT:

1.The decision of the respondent to refuse to revoke the cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa made on 2 September 2015 is quashed.

2.The respondent is to pay the applicant’s costs of the application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NORTH ACJ:

1. The applicant, Clive Ronald Dunn, seeks an order quashing a decision made by the respondent, Minister for Immigration and Border Protection, on 2 September 2015.  By that decision the Minister refused to revoke the cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa. 

2. The applicant was born on 3 February 1948 in New Zealand.  He came to Australia about 35 years ago as an adult aged 32. 

3. On 17 December 2014, the applicant was convicted in the County Court of Victoria of three child pornography offences.  The first offence was accessing child pornography using a carriage service.  He was sentenced to 12 months imprisonment to be released after serving three months on entering a recognisance in the sum of $5000 and including a condition that he be of good behaviour for 24 months.  The second offence was making available child pornography using a carriage service.  On this conviction he was sentenced to six months imprisonment, four months of which were to be served concurrently and suspended after serving three months.  The third offence was knowingly possessing child pornography. For this offence he was sentenced to four months imprisonment to be served concurrently. 

4. In these circumstances, the Minister was bound to cancel the applicant’s visa under s 501(3A) of the