Lesuma v Minister for Immigration and Citizenship

[2007] FCA 2057

FEDERAL COURT OF AUSTRALIA

Lesuma v Minister for Immigration and Citizenship [2007] FCA 2057

ILIMO TULEVU LESUMA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD1982 OF 2007

EMMETT J

10 DECEMBER 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1982 OF 2007

BETWEEN:

ILIMO TULEVU LESUMA
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	10 DECEMBER 2007
WHERE MADE:	SYDNEY

THE COURT:

1.Directs the Minister to file and serve all necessary papers for the hearing of the matter no later than 12 December 2007.

2.Directs the applicant to file and serve any further submissions that he wishes to make in support of the application no later than Monday 17 December 2007.

3.Directs the Minister to file and serve any further submissions no later than 4 pm on Tuesday 18 December 2007.

4.Directs that the matter be listed for hearing at 10.15 am on Wednesday 19 December 2007.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1982 OF 2007

BETWEEN:

ILIMO TULEVU LESUMA
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:

EMMETT J

DATE:

10 DECEMBER 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application for summary dismissal of a proceeding brought in the Court in relation to a decision of the Administrative Appeals Tribunal (the Tribunal) made on 4 September 2007. The first respondent to the proceeding, the Minister for Immigration and Citizenship (the Minister), contends that the applicant in the proceeding has no reasonable prospect of successfully prosecuting the proceeding and therefore seeks summary dismissal pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the Act).

2. The applicant was born in Fiji and came to Australia in 1999 at the age of 19. From 2002 onwards he incurred numerous criminal convictions, including terms of imprisonment totalling more than 10 years. On 30 May 2007 a delegate of the Minister decided to cancel the applicant’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Migration Act). The applicant then sought review by the Tribunal of the delegate’s decision. After a hearing at which applicant appeared in person with the assistance of his father, the Tribunal decided on 4 September 2007 to affirm the decision under review.

3. On 4 October 2007 the applicant commenced this proceeding seeking Constitutional writ relief in respect of the Tribunal’s decision.  On 25 October 2007 the Court ordered that the applicant file and serve an outline of submissions explaining the grounds upon which he seeks judicial review of the Tribunal’s decision.  On 16 November 2007 I gave leave to the Minister to file and serve documents relating to any application for summary dismissal.  The matter came before me on 7 December 2007 but was adjourned by consent to today. 

4. Two grounds are raised in the application that commenced the proceeding.  Pursuant to the direction that I gave, the applicant filed an affidavit on 12 November 2007, which I allowed him to rely upon by way submission.  The affidavit outlines three grounds of review, which might be briefly summarised as follows:

   ·the applicant was denied procedural fairness;

   ·the Tribunal failed to construe the task under review properly; and

   ·s 501 is punitive in its operation and, therefore, is beyond the powers of the Executive. 

5. There may be little substance in the first and third grounds. However, I am not persuaded, at present, that the second ground is not fairly arguable. The Minister contends, and I am prepared to accept for present purposes, that the criterion for determining whether s 31A(2) of the Act should be applied, is whether the grounds are so lacking in merit or substance as to be fairly arguable.

6. The decision that is in issue in the proceeding is a decision under s 501 of the Act, which provides that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test.  It is not disputed that both those prerequisites have been satisfied.  That is to say, the Tribunal reasonably suspected that the applicant does not pass the character test and the applicant did not satisfy the Tribunal that he passes the character test.  Nevertheless, there is still a residual discretion left for the decision maker, being the Minister, or his delegate in the first instance, or the Tribunal on a review pursuant to s 500 of the Act.  That is to say, even if the prerequisites are satisfied, the decision maker must still decide whether to cancel the visa. 

7. In its reasons, the Tribunal began by stating that the issues were as follows:

   ·whether the applicant passes the character test; and

   ·if not, whether the Tribunal should exercise its discretion to set aside or affirm the decision made by the Minister’s delegate to cancel the applicant’s visa.

8. After dealing in some detail with the applicant’s criminal record, the Tribunal concluded that the applicant did not pass the character test.  The Tribunal then went on to deal with the second issue, saying as follows:

   “If I decide that the applicant does not pass the character test, I must consider whether to exercise the discretion in section 501(1) not to cancel the applicant’s visa, notwithstanding that the applicant does not pass the character test.”  [Emphasis added]

   That appears to be a mistaken reference to s 501(2) since s 501(1) is concerned with the discretion to refuse to grant a visa. After referring to the fact that the applicant failed the character test because of his substantial criminal record and that there were no mitigating circumstances, the Tribunal then again said:

   “I must therefore consider whether to exercise my discretion under section 501(2) to decide, nevertheless whether not to cancel the applicant’s visa.”  [Emphasis added]

9. The Tribunal correctly observed that, in making a decision under s 501(2), the decision maker must have regard to Direction No 21 and in particular to the three primary considerations and other secondary considerations outlined in Direction No 21. Ultimately, having considered those matters, the Tribunal concluded that the decision under review should be affirmed.

10. The argument advanced on behalf of the applicant is that the Tribunal appears to have approached the exercise of discretion from the wrong end; that is to say, instead of considering whether to exercise a discretion to cancel the applicant’s visa, which is what is required by s 501(2), the Tribunal considered whether or not it should exercise a discretion in effect to permit the applicant to remain in Australia, that is, a discretion not to cancel the visa.

11. The language of s 501(2) is quite clear, in so far as it confers a discretion to cancel. It is not a discretion not to cancel.  To that extent, it seems to me, that it is at least fairly arguable that the Tribunal misconstrued its task.  That is not to say that I have formed a view as to whether or not that ground will succeed. 

12. One difficulty with dealing with a matter on a summary dismissal basis is that the decision of the delegate is not presently before the Court and, as I have said, the Tribunal purported to affirm that decision.  An examination of the reasons of the delegate, in the context of the reasoning of the Tribunal, may make it clear that, on a fair reading of the Tribunal’s decision, it was exercising a discretion to cancel a visa, rather than exercising a discretion not to cancel the visa.  Be that as it may, I am not persuaded that it is appropriate to dismiss the proceeding summarily at this stage. 

13. As I have said, without dealing with them, the other two grounds do not appear to have a great deal of substance but I have not heard argument from the Minister on those grounds, since I have formed the view that the ground that I have outlined is at least fairly arguable.  I am not persuaded at present that the applicant has no reasonable prospect of successfully prosecuting the proceeding. 

14. The application states that the proceeding is brought pursuant to Order 54, which is concerned with proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The decision in question is a privative clause decision, or at least a purported privative clause decision, of the Tribunal. Accordingly, this Court has original jurisdiction in relation to the decision. Nevertheless, the basis upon which any relief would be granted would be that there was some jurisdictional error on the part of the Tribunal, such jurisdictional error being either a failure to exercise jurisdiction or an excess of jurisdiction. Those matters would need to be addressed in due course by the applicant when the matter comes on for final hearing. At this stage I decline to dismiss the proceeding summarily.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        9 January 2008

The Applicant appeared in person.
Counsel for the Respondent:	Mr J Mitchell
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	10 December 2007
Date of Judgment:	10 December 2007