FEDERAL COURT OF AUSTRALIA
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Appeal from: Marzano v Minister for Immigration and Border Protection [2016] FCA 1180 File number: VID 1273 of 2016 Judges: COLLIER, LOGAN AND MURPHY JJ Date of judgment: 26 April 2017 Catchwords: MIGRATION – visa cancelled under s 501(3A) of the Migration Act – Minister refused to revoke cancellation under s 501CA(4) of the Migration Act – whether s 501CA(4)(b)(ii) of the Migration Act involves an evaluative process – whether finding “another reason why the decision should be revoked” obliges the Minister to revoke the cancellation – whether decision to revoke can only be made by person who made s 501(3A) decision – whether the Minister or delegate is restricted to “relevant information” given at the time of formal notification of the cancellation and representations made in response – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 496, 499, 500(1)(b), 500(1)(ba), 500(4), 500A(1),500A(3), 500A(6), 501, 501(1), 501(2), 501(3), 501(3A), 501(4), 501(5), 501A, 501A(2), 501A(3), 501A(5), 501B, 501B(2), 501B(3), 501BA, 501BA(2), 501BA(4), 501C, 501C(4), 501CA, 501CA(2), 501CA(3), 501CA(4), 501CA(4)(a), 501CA(4)(b), 501CA(4)(b), 501E, 501E(1), 501F(2)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Cases cited: Carltona Ltd v Commissioners of Works [1943] 2 All ER 560
Dooney v Henry (2000) 174 ALR 41; [2000] HCA 44
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Hogan v Australian Crime Commission (2010) 240 CLR 651
Minister for Immigration & Multicultural & Indigenous Affairs v Watson (2005) 145 FCR 542
O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1
Picard v Minister for Immigration and Border Protection [2015] FCA 1430
Re Reference under section 11 of Ombudsman Act 1976 for an advisory opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86
Samad v District Court of New South Wales (2002) 209 CLR 140
Date of hearing: 7 March 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 60 Counsel for the Appellant: Mr GM Hughan Solicitor for the Appellant: Kerdo Legal Counsel for the Respondent: Mr WS Mosley Solicitor for the Respondent: Australian Government Solicitor ORDERS
VID 1273 of 2016 BETWEEN: FRANCESCO MARZANO
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGES:
COLLIER, LOGAN AND MURPHY JJ
DATE OF ORDER:
26 APRIL 2017
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
In Marzano v Minister for Immigration and Border Protection [2016] FCA 1180 a Judge of this Court dismissed an application for judicial review of a decision of the Assistant Minister for Immigration and Border Protection (the Minister) made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act). In her decision the Minister refused to revoke a decision of a delegate under s 501(3A) of the Migration…
Continue reading Marzano v Minister for Immigration and Border Protection
Sign in free to access the full text
Details
- AGLC
- Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
- Case
- [2017] FCAFC 66
- Decision Date
CaseChat Overview and Summary
The case before the court involved the appellant, Mr Marzano, who appealed against the Minister’s decision to not revoke the cancellation of his visa under section 501CA of the Migration Act 1958 (Cth). The appellant’s visa had been cancelled under section 501(3A) of the Migration Act due to a criminal conviction. The appellant submitted a request for the Minister to revoke the cancellation of his visa under section 501CA(4) of the Act. The Minister refused to revoke the cancellation and provided a statement of reasons for the decision. The appellant sought judicial review of the Minister’s decision, contending that the Minister had incorrectly interpreted the relevant statutory provisions and had not adequately considered the evidence provided.
The primary legal issues in the case were whether section 501CA(4)(b)(ii) of the Migration Act involves an evaluative process, whether the finding of “another reason why the decision should be revoked” obliges the Minister to revoke the cancellation, whether the decision to revoke can only be made by the person who made the 501(3A) decision, and whether the Minister or delegate is restricted to the “relevant information” given at the time of formal notification of the cancellation and representations made in response. The appellant argued that the Minister had failed to consider all relevant factors and had placed too much emphasis on the nature of the crimes committed by the appellant.
The court found that the Minister had correctly interpreted the statutory provisions and had adequately considered the evidence provided. The court held that section 501CA(4)(b)(ii) of the Migration Act does not involve an evaluative process, and that the finding of “another reason why the decision should be revoked” does not oblige the Minister to revoke the cancellation. The court also held that the decision to revoke can be made by the Minister or delegate, and that they are not restricted to the “relevant information” given at the time of formal notification of the cancellation and representations made in response. The court found that the Minister had considered all relevant factors and had given appropriate weight to the best interests of the minor family members and the consequences of the decision for the appellant’s family members. The court held that the Minister’s decision was not unreasonable and was based on a proper consideration of the relevant factors.
The appeal was dismissed with costs. The court held that the Minister had correctly exercised her discretion under section 501CA(4)(b)(ii) of the Migration Act and that the decision was not flawed by any error of law or failure to consider relevant matters. The court found that the Minister had given appropriate weight to the relevant factors and had not placed undue emphasis on the nature of the crimes committed by the appellant. The court held that the Minister’s decision was not unreasonable and was based on a proper consideration of the relevant factors. The court dismissed the appeal and ordered that the appellant pay the costs of the proceeding.
The primary legal issues in the case were whether section 501CA(4)(b)(ii) of the Migration Act involves an evaluative process, whether the finding of “another reason why the decision should be revoked” obliges the Minister to revoke the cancellation, whether the decision to revoke can only be made by the person who made the 501(3A) decision, and whether the Minister or delegate is restricted to the “relevant information” given at the time of formal notification of the cancellation and representations made in response. The appellant argued that the Minister had failed to consider all relevant factors and had placed too much emphasis on the nature of the crimes committed by the appellant.
The court found that the Minister had correctly interpreted the statutory provisions and had adequately considered the evidence provided. The court held that section 501CA(4)(b)(ii) of the Migration Act does not involve an evaluative process, and that the finding of “another reason why the decision should be revoked” does not oblige the Minister to revoke the cancellation. The court also held that the decision to revoke can be made by the Minister or delegate, and that they are not restricted to the “relevant information” given at the time of formal notification of the cancellation and representations made in response. The court found that the Minister had considered all relevant factors and had given appropriate weight to the best interests of the minor family members and the consequences of the decision for the appellant’s family members. The court held that the Minister’s decision was not unreasonable and was based on a proper consideration of the relevant factors.
The appeal was dismissed with costs. The court held that the Minister had correctly exercised her discretion under section 501CA(4)(b)(ii) of the Migration Act and that the decision was not flawed by any error of law or failure to consider relevant matters. The court found that the Minister had given appropriate weight to the relevant factors and had not placed undue emphasis on the nature of the crimes committed by the appellant. The court held that the Minister’s decision was not unreasonable and was based on a proper consideration of the relevant factors. The court dismissed the appeal and ordered that the appellant pay the costs of the proceeding.
Orders
Orders of the court
The appeal be dismissed with costs.
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
In seeking revocation of the visa cancellation decision, the appellant provided the Minister with a completed request for revocation form, in addition to various representations, letters of support and a psychological report. This material was provided in the proper manner and time frame.Decision of the Minister On 14 September 2015 the Minister decided not to revoke the decision cancelling the appellant’s visa under s 501CA of the Migration Act. The Minister also signed a statement of reasons in respect of this decision on this date. The Minister stated that she was not satisfied that the appellant satisfied the character test as defined by s 501 of the Migration Act, and went on to consider whether there was any other reason warranting revocation of the cancellation decision. In this respect the Minister noted that representations had been made by Mr Marzano referable to:12.… his strong and longstanding ties to Australia through family and social, education and employment ties, and prolonged residence, the hardship he would suffer in Italy without a supportive social network, his rehabilitation and mental health will deteriorate in Italy, close family members in Australia will be adversely impacted by his removal in terms of emotional distress, it is the best interests of minor extended family members for Mr MARAZANO [sic] to remain in Australia, he does not represent an unacceptable risk to the Australian community in terms of re-offending. After examining issues raised by the appellant under the headings “Best interests of minor children”, “Expectations of the Australian community”, “Strength, nature and duration of ties”, “Extent of impediments if removed” and “Protecting the Australian community”, the Minister continued:71.In considering whether, in light of Mr Marzano’s representations, I was satisfied that there is another reason why the original cancellation decision should be revoked, I gave primary consideration to the best interests of Mr Marzano’s minor nephews and nieces, and have found that their best interests would be best served by the revocation of the mandatory visa cancellation decision.72.In addition, I have considered the length of time Mr Marzano has made a positive contribution to the Australian community and the consequences of my decision for his family members.73.On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by Mr Marzano, that of armed robberies, which were of a violent nature. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.74.Further, I find that the Australian community could be exposed to great harm should Mr Marzano reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr Marzano.75.I am cognisant that where great harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr Marzano, than I otherwise would, because he has lived in Australia for most of his life, having arrived as a young child.76.In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr Marzano represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of minor family members, as a primary consideration, and any other considerations as described above. These include his lengthy residence and family and education bonds, limited employment ties and the hardship Mr Marzano, his family and social networks will endure in the event the original decision is not revoked.77.Having given full consideration to all of these matters, I am not satisfied, for the purposes of s501CA(4)(b)(ii), that there is another reason why the original decision to cancel Mr Marzano’s visa should be revoked. Accordingly, I have decided not to revoke the original decision to cancel Mr Marzano’s Class BF Transitional (Permanent) visa.Application for judicial review
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.