Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
File number:
VID 536 of 2016
Judge:
NORTH ACJ
Date of judgment:
28 September 2016
Catchwords:
MIGRATION - automatic visa cancellation under s 501(3A) Migration Act – refusal to revoke cancellation decision under s 501CA(4) – statutory construction – whether or not s 501CA(4) confers residual discretion – meaning of ‘may’ where Act requires decision-maker to be satisfied of jurisdictional facts
ADMINISTRATIVE LAW – judicial review – constructive failure to exercise jurisdiction – whether or not Minister undertook a genuine or substantive assessment of the risk of re-offending – whether or not there was an evident and intelligible basis for finding that applicant posed an unacceptable risk
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of paragraphs:
41
Counsel for the Applicant:
Ms E Latif
Solicitor for the Applicant:
Victoria Legal Aid
Counsel for the Respondent:
Mr P R D Gray QC with Ms J Lucas
Solicitor for the Respondent:
DLA Piper Australia
ORDERS
VID 536 of 2016
BETWEEN:
MIHOKO GASPAR
Applicant
AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
NORTH ACJ
DATE OF ORDER:
28 SEPTEMBER 2016
THE COURT ORDERS THAT:
1.The application for review of the decision of the Minister for Immigration and Border Protection not to revoke the cancellation of the applicant’s visa on 17 March 2016 is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NORTH ACJ:
The applicant applies for judicial review of a decision of the Minister for Immigration and Border Protection made on 17 March 2016. The Minister decided not to revoke the cancellation of the applicant’s Class BB Subclass 155 Resident Return (Permanent) visa.
The applicant is a citizen of Japan born in June 1970. She came to Australia in 1993 and has lived here for 23 years.
On 10 August 2011, the applicant was sentenced to nine years imprisonment for 15 offences involving fraud.
On 3 March 2015, the applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) which relevantly requires the mandatory cancellation of a visa of a person serving a term of imprisonment with a substantial criminal record as defined in ss 501(3A) (7)(c), namely, that the person has been sentenced to a term of imprisonment of 12 months or more.
The applicant applied…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Case
[2016] FCA 1166
Decision Date
CaseChat Overview and Summary
The applicant, Mr Gaspar, challenged the decision of the Minister for Immigration and Border Protection to refuse his application to revoke the cancellation of his visa under section 501CA(4) of the Migration Act 1958 (Cth). The dispute was heard and determined in the Federal Court of Australia. The central issue before the court was whether the Minister exercised a genuine or substantive assessment of the risk of re-offending by the applicant and if there was an evident and intelligible basis for finding that Mr Gaspar posed an unacceptable risk. Additionally, the court had to determine if section 501CA(4) of the Act conferred a residual discretion on the Minister to refuse the application.
The court found that the Minister did not undertake a genuine or substantive assessment of the risk of re-offending by Mr Gaspar, as required by the Migration Act. The Minister did not provide reasons for his decision that demonstrated a clear understanding of the factors relevant to the assessment of the risk of re-offending. The court held that the Minister’s reasons were inadequate and did not provide an evident and intelligible basis for the finding that Mr Gaspar posed an unacceptable risk. The court also considered the meaning of the word ‘may’ in section 501CA(4) of the Act, concluding that it did not confer a residual discretion on the Minister to refuse the application. Instead, the court found that the provision required the Minister to be satisfied of jurisdictional facts before refusing the application.
In light of the court’s findings, it was determined that the Minister had not exercised his jurisdiction under section 501CA(4) of the Migration Act. Consequently, the application for review of the Minister’s decision was dismissed. The court did not make any orders for the revocation of the visa cancellation, as the decision to refuse the application was found to be invalid.
Orders
Orders of the court
1. The application for review of the decision of the Minister for Immigration and Border Protection not to revoke the cancellation of the applicant’s visa on 17 March 2016 is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.