Long v Minister for Immigration and Citizenship

[2008] FCA 1500

FEDERAL COURT OF AUSTRALIA

Long v Minister for Immigration and Citizenship [2008] FCA 1500

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT SD HOTOP

BRIAN EDWARD LONG v MINISTER FOR IMMIGRATION AND CITIZENSHIP

WAD 117 OF 2008

SIOPIS J

10 SEPTEMBER 2008

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 117 OF 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT SD HOTOP

BETWEEN: BRIAN EDWARD LONG
Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	10 SEPTEMBER 2008
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The applicant’s appeal be allowed.

2.An order in the nature of certiorari be made quashing the decisions made by the Administrative Appeals Tribunal on 9 April 2008 and by a delegate of the respondent on 1 November 2007.

3.The respondent pay the applicant’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 117 OF 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT SD HOTOP

BETWEEN: BRIAN EDWARD LONG
Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent

JUDGE:	SIOPIS J
DATE:	10 SEPTEMBER 2008
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant was born in October 1963 in England and is a citizen of the United Kingdom. He first arrived here with his parents and three sisters in March 1975. Later he went back to England but returned to Australia in 1981. Apart from a visit to the United Kingdom from December 1986 to February 1987, he has resided in Australia since then. The applicant has a serious criminal history. It was on the “character” basis that the decision was made to cancel his visa under s 501(2) of the Migration Act 1958 (Cth) (the Act). The visa which was cancelled was a transitional permanent visa. On 9 April 2008, the Administrative Appeal Tribunal (the Tribunal) rejected the applicant’s application to review that decision.

2. On 17 July 2008, the Full Court of the Federal Court delivered judgment in the case of Sales v Minister for Immigration and Citizenship (2008) 102 ALD 521 (Sales). The Full Court held that a transitional permanent visa could not be cancelled under s 501(2) of the Act because transitional permanent visas were not granted to visa holders. The effect of that decision is that the decision of the delegate of the respondent to cancel the applicant’s transitional permanent visa was invalid. The Sales decision was not available to the Tribunal at the time that it made its decision.  Accordingly, it is not referred to by the Tribunal, but it plainly affects the lawfulness of the Tribunal’s decision.

3. The consequence is that the respondent has conceded this appeal.  In my view, the decision in Sales constitutes a reasonable basis for the respondent to concede the appeal.  Therefore, I am prepared to allow the appeal and make orders setting aside the decisions of the Tribunal and of the delegate of the respondent.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        8 October 2008

Counsel for the Applicant:	The Applicant did not appear.
Counsel for the Respondent:	Mr P Corbould
Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	10 September 2008
Date of Judgment:	10 September 2008