FEDERAL COURT OF AUSTRALIA
Leone v Minister for Home Affairs [2019] FCA 1610
Review of: Leone v Minister for Home Affairs (Migration) [2018] AATA 3363 (10 September 2018) File number: VID 1337 of 2018 Judge: O'BRYAN J Date of judgment: 4 October 2019 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming the decision of the Minister’s delegate refusing to revoke the cancellation of the applicant’s visa under section 501(3A) Migration Act 1958 (Cth) – whether Tribunal failed to engage with mandatory considerations – whether Tribunal required to provide reasons for findings in relation to expert witness – application dismissed Legislation: Migration Act 1958 (Cth), ss 501(3A), 501CA(4)
Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, paras 7(1)(b), 8(1), 8(3), 8(4), 8(5), 13.1, 13.1.2, 13.2, 13.3, 14(1)
Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Applicant in WAD531/2016 v Minister for Immigration and Border Protection [2018] FCAFC 213
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
Dornan v Riordan (1990) 24 FCR 564
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Minister for Home Affairs v Buadromo (2018) 362 ALR 48
Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Navoto v Minister for Home Affairs [2019] FCA 295
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212
Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Date of hearing: 30 May 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 80 Counsel for the Applicant: Ms G A Costello Solicitor for the Applicant: WLW Migration Lawyers Counsel for the First Respondent: Ms C L Symons Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
VID 1337 of 2018 BETWEEN: FRANK LEONE
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
O'BRYAN J
DATE OF ORDER:
4 OCTOBER 2019
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs of the application.
Note: Entry of orders…
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Details
- Case
- [2019] FCA 1610
- Decision Date
CaseChat Overview and Summary
The Federal Court was asked to review a decision by the Administrative Appeals Tribunal (AAT) that had upheld the decision of a Minister’s delegate to refuse to revoke the cancellation of Mr Leone’s visa under section 501(3A) of the Migration Act 1958 (Cth). The applicant, Mr Leone, argued that the Tribunal had failed to engage with certain mandatory considerations and had not provided adequate reasons for its findings regarding an expert witness. The Minister for Home Affairs defended the decision, arguing that the Tribunal had properly exercised its discretion and considered all relevant factors.
The court identified two primary issues for determination: firstly, whether the Tribunal had failed to engage with mandatory considerations, and secondly, whether the Tribunal was required to provide reasons for its findings in relation to the expert witness. The court examined the statutory framework, including section 501CA and Direction No. 65, to assess the Tribunal’s adherence to the legislative mandates and principles outlined. It also considered the extent to which the Tribunal was obliged to provide detailed justification for its conclusions regarding the expert evidence.
In its reasoning, the court found that the Tribunal had indeed engaged with the mandatory considerations set out in the legislation and Direction No. 65. The Tribunal had appropriately weighed the various factors, including the nature of the applicant’s criminal history, the length of his stay in Australia, and the impact of visa cancellation on his family. The court further determined that the Tribunal was not required to provide exhaustive reasons for its findings regarding the expert witness, as long as the overall decision-making process was rational and compliant with the statutory requirements. The court concluded that the Tribunal’s decision was legally sound and based on a proper consideration of all relevant matters.
The court dismissed Mr Leone’s application for judicial review and ordered that he pay the Minister’s costs of the application. The decision affirmed the Tribunal’s authority to balance the various factors involved in visa cancellation decisions, provided it adhered to the statutory framework and principles.
The court identified two primary issues for determination: firstly, whether the Tribunal had failed to engage with mandatory considerations, and secondly, whether the Tribunal was required to provide reasons for its findings in relation to the expert witness. The court examined the statutory framework, including section 501CA and Direction No. 65, to assess the Tribunal’s adherence to the legislative mandates and principles outlined. It also considered the extent to which the Tribunal was obliged to provide detailed justification for its conclusions regarding the expert evidence.
In its reasoning, the court found that the Tribunal had indeed engaged with the mandatory considerations set out in the legislation and Direction No. 65. The Tribunal had appropriately weighed the various factors, including the nature of the applicant’s criminal history, the length of his stay in Australia, and the impact of visa cancellation on his family. The court further determined that the Tribunal was not required to provide exhaustive reasons for its findings regarding the expert witness, as long as the overall decision-making process was rational and compliant with the statutory requirements. The court concluded that the Tribunal’s decision was legally sound and based on a proper consideration of all relevant matters.
The court dismissed Mr Leone’s application for judicial review and ordered that he pay the Minister’s costs of the application. The decision affirmed the Tribunal’s authority to balance the various factors involved in visa cancellation decisions, provided it adhered to the statutory framework and principles.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the first respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The consequences of the decision under review have caused me to reflect carefully on the submissions advanced on behalf of each of Mr Leone and the Minister. In the end, for the reasons that follow, I cannot uphold any of Mr Leone’s grounds of review.Background The decision of the Tribunal records the following background facts concerning Mr Leone:[7] The Applicant grew up in the western suburbs of Melbourne. He left school at the end of Year 10. He worked at Toyota as a storeman and forklift driver for seven years. He worked at various jobs in cafes and a pizza restaurant and later for 17 years as a security officer/crowd controller. In the early 1990’s he purchased a café business and later operated a number of cafes, restaurants and pool halls.[8] In 1988 he commenced a relationship with Ms Tamara Sims with whom he had three daughters. He remained with Ms Sims for around 10 years but eventually the relationship ended in 1998. Ms Sims was a heroin addict and the Applicant successfully applied to the Court for sole custody of his three daughters following the end of his relationship with Ms Sims. The Applicant also had another daughter from a different relationship in 1991. That daughter has been living with her mother, although with the support of the Applicant.[9] In 1998 the Applicant commenced a relationship with Ms Dianne Galileos and together they raised the Applicant’s three daughters. In 2007 the Applicant and Ms Galileos had a daughter together, Alexia.[10] In the period prior to 1990 the Applicant had a number of relatively minor criminal convictions for unrelated offences, including driving while disqualified, using threatening words in a public place, failing to answer bail and discharging a firearm in a public place. In the period after 1990 he had several further convictions for minor offences but his principal offending was drug-related.[11] In July 1990 he was convicted of trafficking heroin and fined $700. He was charged with possession offences in 1990 but the charges were adjourned without conviction and he was placed on a good behaviour bond. He was convicted of trafficking heroin in 1992 and sentenced to 1 year and 9 months in prison with a minimum parole period of 12 months. He was convicted of possession of cannabis and failure to answer bail in 1997 and fined $4,000. He was again convicted of possession of cannabis in 2001. In April 2002 he was convicted of trafficking amphetamines and sentenced to 2 years and 6 months in prison, with 2 years of the sentence suspended for 3 years. He was again convicted of possession of cannabis in 2005 and fined $1,000.[12] On 15 December 2011 the Applicant was convicted in the County Court of Victoria on three counts of trafficking heroin, cocaine and amphetamines in commercial quantities from January to July 2009. He was sentenced to a term of imprisonment of 6 years and 3 months with a minimum parole period of 4 years and 6 months. As a result of this conviction, the Applicant’s Class BF Subclass C Transitional (Permanent) visa was subject to mandatory cancellation under s.501(3A)(b) of the Act. At the completion of his sentence the Applicant was taken into immigration detention.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Section 501CA of the Act relevantly provides that:(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.…(4) The Minister may revoke the original decision if:(a)the person makes representations in accordance with the invitation; and(b)the Minister is satisfied:(i)that the person passes the character test (as defined by section 501); or(ii)that there is another reason why the original decision should be revoked. Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the exercise of those functions and powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 22 December 2014 the then Minister made a direction titled “Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 65) which came into force on 23 December 2014. Paragraph 6.3 of Direction 65 provides as follows:6.3Principles(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.. . .(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
Ratio Decidendi
Legal Principle Established
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