Evx20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3285

FEDERAL CIRCUIT COURT OF AUSTRALIA

EVX20 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS [2020] FCCA 3285

Catchwords:
PRACTICE AND PROCEDURE – Application to compel Minister to determine the applicant’s request for revocation of a cancellation decision under s. 501CA(4) of the Migration Act 1958 (Cth) ‘within twenty-four (24) hours of the making of this order’ – no delay on the part of the Minister since the filing of the application – need for Minister to have time to properly address all relevant issues – need for Minister not to be rushed – application adjourned for consideration of important issues for a six (6) week period.

Legislation:

Migration Act 1958 (Cth), s.501CA.

Applicant: EVX20

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: BRG 605 of 2020

Judgment of: Judge Egan

Hearing date: 2 December 2020

Date of Last Submission: 2 December 2020

Delivered at: Brisbane

Delivered on: 2 December 2020

REPRESENTATION

Solicitor for the Applicant: Mr McComber

Solicitor for the First Respondent: Sparke Helmore

Counsel for the Respondent: Mr McGlade

ORDERS

1. The hearing of the Originating Application filed on 17 November 2020 be adjourned for hearing before His Honour Judge Egan in the Federal Circuit Court of Australia sitting at Brisbane at 8:30am on 20 January 2021.

2. The costs of and incidental to today’s hearing be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 605 of 2020

EVX20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. On 17 November 2020, an Originating Application was filed on behalf of the applicant, the grounds of which were as follows:

   “Grounds of application

   1. The Respondent has unreasonably delayed the determination of the Applicant’s request for revocation under s 501CA(4) of the Migration Act 1958.

   Particulars

   A. On 13 February 2020 the Applicant was convicted of murder and sentenced to life imprisonment. The Applicant has not otherwise been convicted of any criminal offence or sentenced to any period of imprisonment.

   B. On 18 August 2020 the Respondent purported to cancel the Applicant’s subclass 866 visa under s 501(3A) of the Migration Act 1958. The Applicant requested revocation of the mandatory cancellation of his visa in accordance with s 501CA(3) of the Migration Act 1958.

   C. The Applicant’s request for revocation has not yet been determined.

   D. On 6 November 2020 the Queensland Court of Appeal quashed the Applicant’s conviction for murder and entered a verdict of acquittal.

   E. In the premises, the Applicant has passed the ‘character test’ as prescribed by s 501(6) since at least 6 November 2020.

   F. The Minister must revoke the mandatory cancellation of the Minister is satisfied that Applicant passes the character test.

   G. Notwithstanding that the Applicant has clearly passed the character test since at least 6 November 2020, the Respondent has not revoked the mandatory cancellation as required by s 501CA(4)(b)(i).

   H. The Applicant remains in immigration detention as a result of the Respondent’s failure to make a decision.”

2. It is not in dispute that on 6 November 2020, the Queensland Court of Appeal (‘QCA’) quashed the applicant’s conviction for murder and entered a verdict of acquittal. It is noted that a period of eleven (11) days expired between the handing down of the QCA decision, and the filing of the Originating Application.

3. The Court has had regard to the material relied upon today by each of the applicant and the respondent.

4. The Court does not accept the applicant’s submission that simply by reason of the acquittal of the applicant, the applicant is thereby unable to be found by the Minister to be a person who does not satisfy the relevant character test under s. 501CA of the Migration Act 1958 (Cth) (‘the Act’). There may be other matters which have to be considered which might justify the Minister in deciding that the applicant fails the relevant character test criteria notwithstanding such acquittal.

5. The affidavit of Mr Kyranis filed today on behalf of the Minister, at paragraphs [5] – [21] inclusive thereof, sets out how timely steps have been taken on behalf of the Minister so as to allow the Minister to consider the applicant’s application for revocation of the decision to cancel his visa in an expedited manner. That the Minister has adopted a position whereby such consideration is to be expedited is commendable. Nevertheless, the Minister ought not be rushed in arriving at a considered opinion on the relevant question. The Minister is in charge of a very busy portfolio, a factor which must be taken into account when considering applications such as the one presently before the Court.

6. The submissions filed today on behalf of the respondent Minister raise issues as to jurisdiction, and as to mixed questions of fact and law about which the applicant has had no opportunity to properly respond. In unusual circumstances such as the present, neither the applicant, nor the Court, should be put in a position to consider all relevant questions in haste.

7. The Court is minded to adjourn the further hearing of the application to 20 January 2021 so as to allow:

   a)The applicant to properly consider his position; and

   b)The Minister to have time to consider all relevant aspects of the applicant’s circumstances such that a decision can then be made on the question of whether there ought to be a revocation of the cancellation decision or not.

8. And it is so ordered.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 2 December 2020