Hay v Minister for Home Affairs - [2018] FCAFC 149

FEDERAL COURT OF AUSTRALIA
Hay v Minister for Home Affairs [2018] FCAFC 149

Appeal from: Hay v Minister for Immigration and Border Protection [2018] FCA 124

File number: WAD 87 of 2018

Judges: WHITE, MOSHINSKY AND COLVIN JJ

Date of judgment: 5 September 2018

Catchwords: MIGRATION - appeal from decision of primary judge upholding decision not to revoke the cancellation of a visa under s 501(3A) of the Migration Act 1958 (Cth) - whether Minister's decision was affected by jurisdictional error - whether appellant denied procedural fairness by failure to consider a substantial argument, claim or submission made to the Minister - no jurisdictional error - appeal dismissed

Legislation: Migration Act 1958 (Cth) ss 501(3A), 501CA

Cases cited:
Ali v Minister for Immigration and Border Protection [2018] FCA 650

BBT16 v Minister for Home Affairs [2018] FCA 1225

Falzon v Minister for Immigration and Border Protection [2018] HCA 2

Goundar v Minister for Immigration and Border Protection [2016] FCA 1203

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Parker v Minister for Immigration and Border Protection [2017] FCAFC 115

SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116

Date of hearing: 21 August 2018

Registry: Western Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 25

Counsel for the Appellant: The Appellant appeared in person

Counsel for the Respondent: Mr RJS French

Solicitor for the Respondent: Australian Government Solicitor

ORDERS

WAD 87 of 2018

BETWEEN:
IAIN HAY

Appellant

AND:
MINISTER FOR HOME AFFAIRS

Respondent

JUDGES:

WHITE, MOSHINSKY AND COLVIN JJ

DATE OF ORDER:

5 SEPTEMBER 2018

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant do pay the respondent's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT
WHITE J:

I agree with the reasons of Colvin J and with the orders which he proposes.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice White.
Associate:
Dated: 5 September 2018
REASONS FOR JUDGMENT
MOSHINSKY J:

I agree with the reasons and conclusions of Colvin J.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.
Associate:
Dated: 5 September 2018
REASONS FOR JUDGMENT
COLVIN J:

Mr Hay was born in Scotland but has lived in Australia since he was 12 years old. In 2015, he was convicted of sexually based offences involving children. He was sentenced to a term of imprisonment of 12 months for one offence and 6 months for another (to be served concurrently as to part). His visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). As required by s 501CA(3), he was given written notice of the decision and was invited…

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

Case: [2018] FCAFC 149
Decision Date: 5 September 2018

CaseChat Overview and Summary

In the case of Hay v Minister for Home Affairs, the appellant, Mr Hay, appealed against the primary judge's decision which upheld the Minister for Home Affairs' decision not to revoke the cancellation of his visa under section 501(3A) of the Migration Act 1958 (Cth). The primary dispute was about the validity of the Minister's decision in cancelling Mr Hay's visa and the subsequent refusal to revoke that cancellation. The court was required to determine whether the Minister's decision was legally sound, specifically if there was a jurisdictional error, and whether Mr Hay was denied procedural fairness due to the Minister's failure to consider a substantial argument or claim he made.

The court found that there was no jurisdictional error in the Minister's decision. It was established that Mr Hay's visa had been automatically converted by regulation to a Class BF Transitional (Permanent) visa on 1 September 1994, as per the Migration Reform (Transitional Provisions) Regulations 1994 (Cth). The court also dismissed the claim that procedural fairness was breached by the Minister's failure to consider Mr Hay's argument about the nature of his visa, reasoning that section 501(3A) applies regardless of the visa type. The court concluded that the appeal lacked merit and upheld the primary judge's decision.

As a result of the appeal being dismissed, the court ordered that Mr Hay pay the Minister's costs of the appeal. The Minister had requested that costs follow the event irrespective of the outcome, while Mr Hay argued that he would be unable to meet any costs order due to the need to relocate family members for their health. The court considered Mr Hay's circumstances but ultimately determined that it was not a sufficient reason to decline awarding costs to the Minister. Consequently, the orders made were that the appeal be dismissed and that Mr Hay pay the Minister's costs of the appeal to be assessed if not agreed.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant do pay the respondent's costs to be assessed if not agreed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the course of oral submissions, Mr Hay raised an issue about references to the nature of his visa that was cancelled. The primary judge stated that Mr Hay became the holder of a Class BF Transitional (Permanent) visa on 1 September 1994 pursuant to the Migration Reform (Transitional Provisions) Regulations 1994 (Cth). Under the terms of those regulations, the holders of certain visas became the holders of other visas by operation of law. Mr Hay said he had been in Australia since 1970 and had only left once for a short holiday. He did not apply for a visa in 1994. He did not understand how he could have obtained a visa in 1994. However, the nature of the regulations explains the date. In any event, s 501(3A) applies irrespective of the nature of the visa held by Mr Hay.Conclusion and orders For reasons I have given, the appeal grounds lack any merit and the appeal should be dismissed. The parties were invited to make submissions as to costs orders subject to the outcome of the appeal. The Minister's position was that costs should follow the event irrespective of the outcome. Mr Hay made submissions to the effect that he would be unable to meet any costs order by reason of having to meet costs of relocating family members in the interests of their health. Bringing that matter to account, I am not persuaded that it is a sufficient reason to decline to award costs to the Minister. There should be an order that Mr Hay pay the Minister's costs of the appeal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Hay v Minister for Immigration and Border Protection [2018] FCA 124
File number:	WAD 87 of 2018
Judges:	WHITE, MOSHINSKY AND COLVIN JJ
Date of judgment:	5 September 2018
Catchwords:	MIGRATION - appeal from decision of primary judge upholding decision not to revoke the cancellation of a visa under s 501(3A) of the Migration Act 1958 (Cth) - whether Minister's decision was affected by jurisdictional error - whether appellant denied procedural fairness by failure to consider a substantial argument, claim or submission made to the Minister - no jurisdictional error - appeal dismissed
Legislation:	Migration Act 1958 (Cth) ss 501(3A), 501CA
Cases cited:	Ali v Minister for Immigration and Border Protection [2018] FCA 650 BBT16 v Minister for Home Affairs [2018] FCA 1225 Falzon v Minister for Immigration and Border Protection [2018] HCA 2 Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 Parker v Minister for Immigration and Border Protection [2017] FCAFC 115 SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771 Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
Date of hearing:	21 August 2018
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	25
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	Mr RJS French
Solicitor for the Respondent:	Australian Government Solicitor

JUDGES:	WHITE, MOSHINSKY AND COLVIN JJ
DATE OF ORDER:	5 SEPTEMBER 2018