MAAKA v Minister for Immigration - [2005] FMCA 193

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAAKA v MINISTER FOR IMMIGRATION

[2005] FMCA 193

MIGRATION – Visa – cancellation of visa – whether jurisdictional error arising from procedural unfairness.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474; 475A; 501
Children (Criminal Proceedings) Act 1987 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW), ss.10; 12; 21

Re MIMIA & Anor; Ex parte Miah (2001) 206 CLR 57
Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82
Tuncok v MIMIA [2003] FCA 1069
Ayan v MIMIA [2003] FCAFC 139
Re MIMIA; Ex parte Lam (2003) 195 ALR 505
Untan v MIMIA [2003] FCAFC 69
Wiseman v Borneman [1971] ACT 297
Kioa v West (1985) 159 CLR 550
Jones v MIMIA [2005] FCA 70

Applicant:

RITCHIE MAAKA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 3150 of 2004

Judgment of:

Scarlett FM

Hearing date:

23 December 2004

Date of Last Submission:

23 December 2004

Delivered at:

Sydney

Delivered on:

24 January 2005

REPRESENTATION

Counsel for the Applicant:

Ms Seward

Solicitors for the Applicant:

Ebsworth & Ebsworth

Counsel for the Respondent:

Ms Henderson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That a writ of Certiorari issue quashing the decision of the Respondent on 12 August 2004 to cancel the Applicant’s Special Category (subclass 444) visa.
That an Order of prohibition issue prohibiting the Respondent from acting further upon the decision to cancel the Applicant’s Special Category (subclass 444) visa.
That the Applicant be released from immigration detention forthwith.
That the Respondent pay the Applicant’s costs of this Application in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3150 of 2004

RITCHIE MAAKA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUR AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

This is an application for a writ of prohibition restraining the Respondent Minister from acting on her decision of 12^th August 2004 to cancel the Applicant’s visa and for a writ of certiorari quashing the decision.

Background

The Applicant is a New Zealand citizen who was born on

25^th August 1979. He arrived in Australia on 29^th April 1981 at the age of two years and eight months. He has lived in Australia ever since.
The Applicant was granted a Special Category visa on 1^st September 1994 under the Migration Reform Act.
The Applicant first came under adverse notice in February 1995, when he was aged 15 years and 6 months. On 21^st February 1995 he received control orders under the Children (Criminal Proceedings) Act (1987) (NSW) at the Cobham Children’s Court for the offences of illegal use of a motor vehicle and armed robbery in company. These sentences were reduced to non-custodial sentences on appeal.
From then on, the Applicant received numerous other sentences first in the Children’s Court of New South Wales and then, when he became an adult, in the Local Court. His most recent conviction appears to have been on 7^th July 2003, when he…

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: [2005] FMCA 193
Decision Date: 24 January 2005

CaseChat Overview and Summary

This case involved MAAKA, the applicant, and the Minister for Immigration, the respondent. The matter was heard in the Federal Court of Australia, where the applicant sought judicial review of the respondent's decision to cancel his visa and order his removal from Australia. The primary issue before the court was whether the respondent had failed to afford the applicant procedural fairness in the exercise of her discretion under section 501(2) of the Migration Act 1958 (Cth). The applicant argued that he was misled about how the Minister would approach the exercise of her discretion, and that this led to a jurisdictional error. The respondent, on the other hand, contended that the Minister's discretion was unfettered and that it was not necessary to adhere to the ordinary meaning of Direction 21.

The court found in favour of the applicant, holding that procedural fairness must be evaluated in the context of the individual case. The court noted that the applicant had received a clear warning about the consequences of re-offending and that he could not be regarded as a person of good character. However, the court also found that the applicant was entitled to expect that the ordinary meaning of Direction 21 would apply and that if the Minister had a different understanding, she should have informed the applicant. The court found that the respondent's failure to do so constituted a failure of procedural fairness and led to a jurisdictional error.

As a result of the court's decision, the respondent's decision to cancel the applicant's visa was quashed, and an order of prohibition was issued prohibiting the respondent from acting further upon the decision. The applicant was also released from immigration detention forthwith. Finally, the court ordered the respondent to pay the applicant's costs of the application in the sum of $4,500.00.

Orders

Orders of the court

That a writ of Certiorari issue quashing the decision of the Respondent on 12 August 2004 to cancel the Applicant’s Special Category (subclass 444) visa.

That an Order of prohibition issue prohibiting the Respondent from acting further upon the decision to cancel the Applicant’s Special Category (subclass 444) visa.

That the Applicant be released from immigration detention forthwith.

That the Respondent pay the Applicant’s costs of this Application in the sum of $4,500.00.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In the submission, counsel for the Respondent noted that the Amended Application concentrates solely on the claim that the Applicant was denied procedural fairness, which therefore led to jurisdictional error. She submitted that the presence or absence of procedural fairness must be evaluated in the context of the individual case, quoting from the useful judgment of the Full Court in Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 139 at [20]:…the assessment of whether there has been an absence of procedural fairness is one of assessment of ‘practical injustice’ (Re Minister for Immigration and Multicultural and indigenous Affairs: Ex parte Lam (2003) 195 ALR 502 [34] and [38] per Gleeson CJ and see also [122] per Hayne J and [149] per Callinan J, and the Full Court of this Court[6] in Untan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 69 at [96] or [99] or whether the procedure was ‘fair in all the circumstances’ Wiseman v Borneman [1971] ACT 297, 308 (per Lord Reid) applied by Brennan J in Kioa v West (1985) 159 CLR 550 at 662 to enable the person the subject of the decision to understand the matters which he or she needs to address and to have a reasonable opportunity to address those matters. [6] Ie The Federal Court Ms Henderson submitted that the circumstances of the High Court decisions Aala (supra) and Miah (supra) bear no resemblance to the case before this Court. She characterised the Applicant’s argument as in essence, that he was misled as to the way in which the Minister would approach the exercise of her discretion. Ms Henderson said that the discretion in s.501(2) is unfettered, except for the requirement that it must be exercised by reference to considerations identified from the subject-matter, scope and purpose of the statute. Counsel submitted that it is an unsound proposition to regard “serious conduct” in paragraph 2.6 of the Direction as defined by a proposition containing examples of offences that are regarded as “very serious”. How, then, does one define “serious conduct”? In my view, there is a great deal of force in the Applicant’s submissions. I accept the fact that the Applicant received a clear warning about the consequences of his re-offending, and I accept the fact that he cannot be regarded as a person of good character, quite the reverse, in fact. It is, to my mind, correct to say that procedural fairness must be evaluated in the context of the individual case, as Ms Henderson submitted. That said, it appears to me that the Applicant was advised that the Minister would take Direction 21 into account and, in this case, the Applicant was entitled to expect that the ordinary meaning of the Direction would apply. If that were not to be the case, then he should have been told that the Minister’s understanding was different from the ordinary meaning of the direction. The Applicant’s drug issues are in two separate categories.