Engi v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Engi v Minister for Home Affairs [2019] FCA 1081

File number: NSD 2408 of 2018
Judge: MARKOVIC J
Date of judgment: 11 July 2019
Catchwords: MIGRATION – application for extension of time – where the Administrative Appeals Tribunal (Tribunal) overturned a decision of a delegate of the Minister not to revoke a decision cancelling the applicant’s visa – where the Minister decided pursuant to s 501BA of the Migration Act 1958 (Cth) (Act) to set aside the Tribunal’s decision and cancel the visa – where there was a delay of 50 days in the applicant’s application for judicial review – whether there was an adequate explanation for the delay – whether the notification letter sent pursuant to s 501G was valid – whether the grounds raised in the draft originating application have any prospects of success – application dismissed
Legislation: Migration Act 1958 (Cth) ss 477A, 501(6)-(7), 501BA, 501G
Cases cited:

Anaki v Minister for Immigration and Border Protection [2018] FCA 77

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352

DOB18 v Minister for Home Affairs [2019] FCAFC 63

Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158

O’Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1

Rere v Minister for Immigration and Border Protection [2018] FCA 846

Tewao v Minister for Immigration and Citizenship (2012) 126 ALD 185; [2012] FCAFC 39

Date of hearing: 4 June 2019
Date of last submissions: 7 June 2019 (Applicant)
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 76
Counsel for the Applicant: Mr A Munro
Solicitor for the Applicant: Turner Coulson Immigration Lawyers
Counsel for the Respondent: Mr D Hughes
Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS

NSD 2408 of 2018
BETWEEN:

JOSEPH KANE ENGI

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:

MARKOVIC  J

DATE OF ORDER:

11 JULY 2019

THE COURT ORDERS THAT:

1.The application for an extension of time lodged with the Court on 21 December 2018 and accepted for filing on 28 December 2018 be dismissed.

2.The applicant pay the respondent’s costs as agreed or taxed.

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


REASONS FOR JUDGMENT

MARKOVIC J:

  1. The applicant is a citizen of New Zealand.  He arrived in Australia on 23 August 1995 at the age of seven and was granted a Class TY subclass 444 Special Category (Temporary) visa (Visa).

  2. On 7 October 2016 the Visa was cancelled by a delegate of the respondent (Minister) under s 501(3A) of the Migration Act 1958 (Cth) (Act) (Original Decision), which requires the Minister to cancel a visa if he or she is satisfied that the person does not pass the character test. The delegate was satisfied that the applicant did not pass the character test as he has…

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Details
Case
[2019] FCA 1081
Decision Date

CaseChat Overview and Summary

In the matter of Engi v Minister for Home Affairs, the applicant, Engi, sought an extension of time to apply for judicial review of a decision made by the Minister for Home Affairs. The Minister had set aside a decision of the Administrative Appeals Tribunal that had overturned a decision to cancel Engi's visa. Engi's visa was ultimately cancelled under section 501BA of the Migration Act 1958 (Cth). Engi's application for judicial review was delayed by 50 days, and the Minister argued that Engi did not have an adequate explanation for the delay. The court had to determine whether there was an adequate explanation for the delay, whether the notification letter sent under section 501G was valid, and whether the grounds raised in the draft originating application had any prospects of success.

The court found that Engi did not have an adequate explanation for the delay in lodging the application for judicial review. The court also found that the notification letter sent under section 501G was valid. However, the court found that the grounds raised in the draft originating application did not have any prospects of success. The court found that the Minister had exercised his power under section 501BA of the Act correctly, and that the decision to cancel Engi's visa was in the national interest. The court noted that the seriousness of Engi's criminal conduct, including his resort to violence, and the risk of reoffending, supported the Minister's decision.

The court dismissed Engi's application for an extension of time to apply for judicial review. The court also ordered that Engi pay the respondent's costs as agreed or taxed. The orders were entered in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application for an extension of time lodged with the Court on 21 December 2018 and accepted for filing on 28 December 2018 be dismissed.

2. The applicant pay the respondent’s costs as agreed or taxed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 501BA of the Act provides:Cancellation of visa—setting aside and substitution of non-adverse decision under section 501CA(1) This section applies if:(a) a delegate of the Minister; or(b) the Administrative Appeals Tribunal;makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.Action by Minister—natural justice does not apply(2)The Minister may set aside the original decision and cancel a visa that has been granted to the person if:(a)the Minister is satisfied that the person does not pass the character test because of the operation of:(i)paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or(ii) paragraph 501(6)(e); and(b) the Minister is satisfied that the cancellation is in the national interest.(3) The rules of natural justice do not apply to a decision under subsection (2).Minister’s exercise of power(4)The power under subsection (2) may only be exercised by the Minister personally.Decision not reviewable under Part 5 or 7(5) A decision under subsection (2) is not reviewable under Part 5 or 7. The “character test” is relevantly defined in s 501 as follows:(6)For the purposes of this section, a person does not pass the character test if: (a)the person has a substantial criminal record (as defined by subsection (7)); or…(7)For the purposes of the character test, a person has a substantial criminal record if: (a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or (c)the person has been sentenced to a term of imprisonment of 12 months or more; or…MINISTER’S DECISION The Minister set out the requirements of s 501BA of the Act and observed that it enabled him to set aside the Tribunal’s decision and cancel a visa granted to a person where he is satisfied that the person does not pass the character test, relevantly because of the operation of s 501(6)(a) on the basis of s 501(7)(c), and he is satisfied that the visa cancellation is in the national interest. The Minister was satisfied that the applicant did not pass the character test. This was because on 17 June 2016 the applicant had been sentenced to a term of 12 months’ imprisonment. The Minister then considered whether cancellation of the Visa was in the national interest. He noted that the term “national interest” is not defined for the purposes of s 501BA of the Act but considered that it could include, among other things, the seriousness of the criminal conduct, having regard to the circumstances and nature of the conduct; any disposition imposed by the court in respect of the conduct; the risk of the person reoffending; and the harm that could flow if such a risk eventuated. The Minister then considered each of these matters. In relation to the seriousness of the applicant’s criminal conduct and disposition imposed by the court the Minister found that:(1)the applicant’s offending which was the subject of his conviction on 17 June 2016 was serious particularly as the applicant resorted to violence when confronted while he was stealing items from a car. In making that finding the Minister acknowledged that, while the applicant’s offending was serious, it did not constitute offending at the upper end of seriousness;(2)the applicant’s offending which was the subject of his conviction on 25 June 2010 of “assault occasioning abh in company of others” and for which he was sentenced to a $2,000 fine and a two-year good behaviour bond was serious because the offence involved violence;(3)the applicant had engaged in domestic violence related offending resulting in convictions on 27 November 2014 of “destroy or damage property (dv)” and “stalk/intimidate intend fear physical etc harm (domestic)” for each of which he received a six-month good behaviour bond. As a result of further offending by the applicant, those offences were called up and he was resentenced to four months’ imprisonment for each offence. The Minister rejected the Tribunal’s characterisation of the applicant’s domestic violence offences and found that they were very serious;(4)the applicant’s other criminal convictions which took place between 2006 and 2016 for, amongst other things, multiple larceny, break and enter and driving offences, were, as the Tribunal had found, serious and the applicant’s criminal history showed that his offending had increased in seriousness; and(5)the sentences of imprisonment received by the applicant were a further indication of the seriousness of his offending given that dispositions involving incarceration are the last resort in the sentencing hierarchy.

Ratio Decidendi

Legal Principle Established

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