Maksoud v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCA 1635

FEDERAL COURT OF AUSTRALIA

Maksoud v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1635

Appeal from:

Application for judicial review: Maksoud and Minister for Home Affairs (Migration) [2019] AATA 825

File number:

NSD 824 of 2019

Judge:

ROBERTSON J

Date of judgment:

3 October 2019

Catchwords:

MIGRATION – application for judicial review of decision of the Administrative Appeals Tribunal affirming decision of the delegate to refuse a Bridging E (Class WE) – where delegate found that the applicant did not pass the character test in that, in the event the applicant were allowed to remain in Australia, there was a risk that he would engage in criminal conduct in Australia within s 501(6)(d)(i) of the Migration Act 1958 (Cth) – where the Tribunal found that the applicant did not pass the character test having regard to the applicant’s past and present general conduct within s 501(6)(c)(ii) of the Migration Act – parties proposed that an order be made by consent the effect of which was to set aside the decision of the Tribunal – Court’s Practice Note requiring that the proposed consent order contain a succinct statement of the matters said to justify the making of the proposed consent order – Held: decision of the Tribunal set aside – order that for the purposes of the reconsideration and re-determination of the application for review the Tribunal be differently constituted 

Legislation:

Migration Act 1958 (Cth) s 501(6)

Federal Court of Australia, Consent Orders Involving a Federal Tribunal Practice Note (GPN-TRIB), 25 October 2016

Cases cited:

Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39

Date of hearing:

3 October 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

14

Counsel for the Applicant:

Mr P Bodisco

Counsel for the First Respondent:

Mr J Kay Hoyle

Solicitor for the First Respondent:

MinterEllison

Counsel for the Second Respondent:

The Second Respondent submitted to any order of the Court, save as to costs.

ORDERS

NSD 824 of 2019

BETWEEN:

WALID MAKSOUD

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	3 OCTOBER 2019

BY CONSENT, THE COURT ORDERS THAT:

1.A writ of certiorari issue quashing the decision of the second respondent dated 10 May 2019 (AAT case number 2019/1040).

2.A writ of mandamus issue directed to the second respondent requiring it to reconsider and re-determine the application for review according to law.

3.The first respondent pay the applicant’s costs as agreed or assessed.

THE COURT ORDERS THAT:

4.For the purposes of the reconsideration and re-determination of the application for review in accordance with order 2, the Tribunal be differently constituted.

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

REASONS FOR JUDGMENT

ROBERTSON J:

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal made on 10 May 2019, affirming the decision of a delegate of the Minister to refuse an application for a Bridging E (Class WB) visa under s 501(1) of the Migration Act 1958 (Cth).

2. The decision of the delegate of the Minister, made on 14 February 2019, was based on a finding that the applicant did not pass the character test in that, in the event the applicant were allowed to remain in Australia, there was a risk that he would engage in criminal conduct in Australia, within s 501(6)(d)(i) of the Migration Act.

3. The basis of the decision of the Tribunal was its finding that the applicant did not pass the character test in that the applicant was not a person of good character having regard to his past and present general conduct, within s 501(6)(c)(ii) of the Migration Act.

4. The application for judicial review in this Court was listed for hearing on 5 September 2019. However, the hearing on that date was vacated, by consent, in light of what was then referred to by counsel for the Minister as a potential problem in the way the Deputy President of the Tribunal approached matters. It was considered advisable, at least, to obtain the transcript of the hearing before the Tribunal so as to see whether the parties were aware of the prospect that the Tribunal might proceed under s 501(6)(c)(ii), whereas the delegate had proceeded under s 501(6)(d)(i).

5. A related potential issue, to which I will return briefly, was the extent to which the s 501(6)(c)(ii) criterion involved a materially different or broader approach to the facts than did the s 501(6)(d)(i) criterion.

6. Since 5 September 2019, a transcript of the Tribunal hearing has been obtained and made available to both parties.  More recently, the respondent Minister provided the applicant (and counsel for the applicant) with proposed orders that the Minister was prepared to ask the Court to make to resolve the matter.

7. In accordance with the Court’s Consent Orders Involving a Federal Tribunal Practice Note (GPN-TRIB), yesterday the parties provided a proposed consent order that contains a succinct statement of the matters said to justify the making of the proposed consent order.

8. The proposed consent orders are as follows, the references to the second respondent being to the Tribunal:

   1.A writ of certiorari issue quashing the decision of the second respondent dated 10 May 2019 (AAT case number 2019/1040).

   2.A writ of mandamus issue directed to the second respondent requiring it to reconsider and re-determine the application for review according to law.

   3.        The first respondent pay the applicant’s costs as agreed or assessed.

9. The succinct statement is in the following terms:

   The Court notes that:

   1. The first respondent concedes that the second respondent made a jurisdictional error in this case by reason of a breach of procedural fairness in circumstances where:

   1.1 the applicant and the first respondent argued the case before the second respondent on the basis of section 501(6)(d) of the Migration Act 1958 (Cth) (the Act);

   1.2 the second respondent affirmed the decision under review on a different basis, namely section 501(6)(c) of the Act;

   1.3 the second respondent failed to identify to the applicant that it proposed to determine the matter on the basis of section 501(6)(c) of the Act rather than section 501(6)(d) and to give the applicant an opportunity to comment on, or make submissions about, paragraph 501(6)(c).

10. In my view, that statement provides a sufficient indication to the Tribunal of a dispositive matter in respect of which the Tribunal erred. That statement also provides an assurance to the public that this Court, on examination of the Tribunal’s reasons and the parties’ succinct statement, is carrying out its supervisory function of the exercise of public power by an administrative body, the Tribunal, and is not merely acceding to the wishes of the parties. What I have referred to at [5] above shows what is implicit in the parties’ identification of the Tribunal’s error, that is, that the error was material.

11. Having considered the reasons of the Tribunal, I find it is appropriate to set aside the decision of the Tribunal on that basis. 

12. I would also regard it as appropriate in light of the findings made by the Tribunal as to the applicant’s credit that, on remittal, the Tribunal be differently constituted, and I will make an order to that effect: see Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42 per Davies and Foster JJ. Counsel for the Minister did not oppose an order in these terms.

13. One final matter to which I advert in order to save unnecessary disputation in the Tribunal as to the effect of the orders I make today is that it should not be assumed by the Tribunal constituted to rehear the matter that the fact-finding or reasoning of the present Tribunal is legally unimpeachable or factually correct.  In other words, the form of the succinct statement should not be taken to contain a positive implication to the effect that all or any other aspects of the Tribunal’s reasons, including its fact-finding, is to be relied on without more.  The effect of the orders to be made today is that the applicant for review and the respondent should be given the opportunity to adduce such evidence and make such submissions as they may be advised.

    Conclusion and orders

14. The orders of the court are as proposed by the parties, by consent, together with the additional order to which I have referred above that, on the rehearing, the Tribunal be differently constituted.

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

Associate:

Dated:       3 October 2019