Maere v Minister for Home Affairs

Case [2018] FCA 1694

FEDERAL COURT OF AUSTRALIA

Maere v Minister for Home Affairs [2018] FCA 1694

File number: VID 1361 of 2017
Judge: BROMBERG  J
Date of judgment: 8 November 2018
Catchwords: MIGRATION – mandatory cancellation of applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth)(“Act”) – decision by Assistant Minister under s 501CA(4) of the Act not to revoke the cancellation decision – whether Assistant Minister’s decision affected by jurisdictional error – application for judicial review dismissed
Legislation: Migration Act 1958 (Cth), ss 501(3A), 501CA
Cases cited:

AVU15 v Minister for Immigration and Border Protection [2017] FCA 608

Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513

BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153

Brown v Minister for Immigration and Border Protection (2015) 235 FCR 88

BSJ16 v Minister for Immigration and Border Protection (2017) 252 FCR 82

Carrascalao v Minister for Immigration & Border Protection [2017] FCA 608

Falzon v Minister for Immigration and Border Protection (2018) 92 ALJR 201

Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713

Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140

Minister for Immigration and Citizenship v SZJSS (2011) 243 CLR 164

Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367

Parker v Minister for Immigration and Border Protection [2017] FCAFC 115
Date of hearing: 17 July 2018
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 61
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent:  Mr G Hill
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 1361 of 2017
BETWEEN:

ADRIAN TUROA MAERE

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:

BROMBERG  J

DATE OF ORDER:

8 NOVEMBER 2018

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the costs of the respondent.

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


REASONS FOR JUDGMENT

BROMBERG J:

BACKGROUND

  1. The applicant is a citizen of New Zealand who has lived in Australia since 1989 when he was 28 years old.  He held a Class TY Subclass 444 Special Category (Temporary) visa (“visa”).  On 5 December 2016, a delegate of the respondent (the “Minister”) decided to cancel the visa (the “cancellation decision”). That decision was made under s 501(3A) of the Migration Act 1958 (Cth) (the “Act”). 

  2. Section 501(3A) of the Act, when read in conjunction with ss 501(6)(a) and 501(7)(c), obliges the Minister to cancel a person’s visa if the Minister is satisfied that the person does not pass the “character test” because (relevantly) the person has a substantial criminal record and has been sentenced to a term of imprisonment of 12 months or more. It was not in dispute that the applicant’s circumstances fell within the criteria for mandatory cancellation set out in s 501(3A) of the Act.

  3. Where a cancellation decision is made under…

Continue reading Maere v Minister for Home Affairs

Sign in free to access the full text

Details
AGLC
Maere v Minister for Home Affairs [2018] FCA 1694
Case
[2018] FCA 1694
Decision Date

CaseChat Overview and Summary

The case of Maere v Minister for Home Affairs involved an application for judicial review by the applicant, Maere, against the decision of the Assistant Minister, under the Migration Act 1958, not to revoke a visa cancellation decision. The Federal Court was tasked with determining whether the Assistant Minister's decision contained jurisdictional errors warranting the cancellation to be revoked. The applicant argued that the decision was unreasonable and failed to consider several relevant factors. The applicant also contended that the decision-making process did not adhere to the principles of natural justice and procedural fairness.

The court had to decide whether the Assistant Minister's decision was affected by any jurisdictional errors, particularly if the decision-maker failed to consider relevant factors or adhered to the correct legal standards. The applicant contended that the Assistant Minister did not properly consider the applicant's ties to Australia, his best interests, and the risk he posed to the Australian community. The court reviewed the Assistant Minister's reasons and assessed whether they demonstrated a proper consideration of the factors relevant to the decision-making process. The court also examined if the Assistant Minister's decision was influenced by any procedural errors or failed to accord procedural fairness.

The Federal Court found that the Assistant Minister's decision was not affected by any jurisdictional error. The court concluded that the Assistant Minister had adequately considered the factors relevant to the decision-making process, including the applicant's ties to Australia, his best interests, and the risk he posed to the Australian community. The court determined that the Assistant Minister's reasons for the decision were comprehensive and demonstrated a proper consideration of all relevant factors. The court further held that the decision-making process adhered to the principles of natural justice and procedural fairness. Consequently, the application for judicial review was dismissed, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant pay the costs of the respondent.

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

By his second amended notice of application for judicial review, the applicant relies on the following unparticularised grounds (as per the original):(1)The respondent’s decision was unreasonable with regard to process and outcome.(2)The respondent’s decision involved an error of law.(3)The respondent failed to have regard to relevant considerations.(4)The respondent failed to take relevant considerations into account.(5)The respondent, in making its decision, did not comply with the rules of natural justice.(6)The respondent failed to make findings as to matters raised by the applicant in his representation.(7)The respondent failed to accord procedural fairness.THE NON-REVOCATION DECISION It is convenient to set out the relevant content of the non-revocation decision and the Assistant Minister’s reasons. The non-revocation decision, under the heading “Non-revocation outcome”, records that having considered all matters, including an assessment of the character test, and all the evidence before him provided by the applicant, the Assistant Minster was not satisfied that the applicant passed the character test and that there was not “another reason” why the cancellation decision should be revoked. The non-revocation decision was accompanied by the reasons. The Assistant Minister concluded at [9] of the reasons that he was not satisfied that the applicant passed the character test (this being one of the necessary bases for revocation under s 501CA(4)(b)(i)). The reasons then addressed whether or not the Assistant Minister was satisfied that there was another reason why the cancellation should be revoked (this being the other possible basis for revocation under s 501CA(4)(b)(ii)). At [12] the Assistant Minister summarised the reasons that had been put forward by the applicant in support of revocation of the cancellation decision. Those reasons were as follows:(1)it is in the best interests of his minor daughter;(2)he has ties to Australia through his family here, which consists of his adult daughter, two brothers, a half-brother and extended family members;(3)he also has ties through his long residence in Australia, his friendships with members of the Australian community and his contribution to the Australian community through his employment;(4)he is remorseful and will not reoffend, with help from ongoing psychological counselling; and(5)he has concerns about returning to New Zealand because of his long term absence and the lack of support for him there. The Assistant Minister then went on to consider those matters under the following headings:(1)Best interests of minor children (at [13]-[17]);(2)Strength, nature and duration of ties (at [18]-[26]);(3)Extent of impediments if removed (at [27]-[33]); and(4)Protecting the Australian community (at [34]-[72]). Under the last of these headings, the Assistant Minister considered the applicant’s criminal conduct (at [35]-[55]) and risk to the Australian community (at [56]-[72]). The Assistant Minister’s reasoning was adequately summarised in the submissions of the Minister and, with minor amendments, that summary is adopted in what follows.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.