Mason v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Mason v Minister for Home Affairs [2020] FCA 1787  

File number(s): VID 381 of 2018
Judgment of: KENNY  J
Date of judgment: 14 December 2020
Catchwords: MIGRATION – whether open to Minister to re-exercise the discretion conferred by s 501(2) – whether new fact or circumstance since previous decision not to cancel applicant’s visa – relationship between ss 501 and 501A of the Migration Act 1958 (Cth) – whether decision affected by legal unreasonableness – no probative evidence to support material finding – failure to consider mandatory relevant consideration – failure to consider administrative history – certiorari issued
Legislation:

Migration Act 1958 (Cth) ss 501 and 501A

Sex Offender Registration Act 2004 (Vic) ss 14, 17 and 46

Cases cited:

Assad v Minister for Home Affairs (No 2) [2019] FCAFC 214

Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; 271 FCR 595

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496

DAO16 v Minister for Immigrationand Border Protection [2018] FCAFC 2; 258 FCR 175

FPU18 v Minister for Immigration and Border Protection [2018] FCA 1606

Makasa v Minister for Immigration and Border Protection [2020] FCAFC 22; 376 ALR 191

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24

Minister for Home Affairs v Brown [2020] FCAFC 21; 376 ALR 133

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429

Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; 230 FCR 367

Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; 247 FCR 500

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355

Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 122
Date of hearing: 25 October 2019
Counsel for the First Applicant: Mr A Aleksov
Counsel for the First Respondent: Mr G Hill
Solicitor for the First Applicant: Lincolns Lawyers & Consultants
Counsel for the First Applicant: Sparke Helmore

ORDERS

VID 381 of 2018
BETWEEN:

TIMOTHY JAMES FILMER MASON

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:

KENNY  J

DATE OF ORDER:

14 DECEMBER 2020

THE COURT ORDERS THAT:

1.A writ of certiorari be issued quashing the decision of the Minister for Home Affairs dated 13 February 2018 to cancel the applicant’s Class BB Subclass 155 Five Year Resident Return Visa.

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Details
Case
[2020] FCA 1787
Decision Date

CaseChat Overview and Summary

In Mason v Minister for Home Affairs, the applicant, Timothy James Filmer Mason, sought judicial review of a decision made by the Minister for Home Affairs on 13 February 2018 to cancel his Class BB, subclass 155 Five Year Resident Return Visa under section 501(2) of the Migration Act 1958 (Cth). The applicant had been convicted of possessing child pornography in 2008 and sentenced to 14 months imprisonment. In 2009, the Department had advised the applicant that his visa would not be cancelled on character grounds at that time. The Minister's 2018 decision was based on the applicant's criminal history, including his child pornography conviction.

The primary legal issue before the court was whether the Minister was open to re-exercising the discretion conferred by section 501(2) in light of a previous decision not to cancel the applicant's visa, and whether the decision was affected by legal unreasonableness. The court considered whether there were new facts or circumstances since the 2009 decision, whether the decision was affected by failure to consider relevant mandatory considerations, and whether the decision was unreasonable in light of the evidence before the Minister.

The court found that the Minister's decision was affected by legal unreasonableness for several reasons. Firstly, the Minister failed to consider the administrative history of the case, including the 2009 decision not to cancel the applicant's visa on character grounds. Secondly, the Minister failed to consider a mandatory relevant consideration, namely the availability of sentencing remarks at the time of the applicant's conviction. Thirdly, the Minister's reasons did not include any probative evidence to support the material finding that the applicant did not pass the character test. The court concluded that the Minister's decision was affected by legal unreasonableness and that a writ of certiorari should be issued to quash the decision.

The court ordered that a writ of certiorari be issued quashing the decision of the Minister for Home Affairs dated 13 February 2018 to cancel the applicant’s visa. The applicant was to be released from immigration detention forthwith, and he was granted liberty to apply within 14 days to seek further relief. The respondent was ordered to pay the applicant’s costs of the proceeding, as agreed or assessed.

Orders

Orders of the court

1. A writ of certiorari be issued quashing the decision of the Minister for Home Affairs dated 13 February 2018 to cancel the applicant’s Class BB Subclass 155 Five Year Resident Return Visa.

2. The applicant, Timothy James Filmer Mason, be released from immigration detention forthwith.

3. The applicant have liberty to apply within 14 days to seek further relief.

4. The respondent pay the applicant’s costs of the proceeding, as agreed or assessed.

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

For the reasons stated below, I would order that a writ of certiorari be issued quashing the decision of the Minister dated 13 February 2018.MINISTER’S DECISION As already indicated, s 501(2) of the Migration Act empowers the Minister to cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test (as defined in s 501(6)) and the person does not satisfy the Minister that he or she passes the character test. The Minister’s reasons commenced by noting that the applicant had been convicted of the offence of knowingly possessing child pornography on 1 December 2008 and sentenced to 14 months’ imprisonment. The reasons continued:As a result of the… conviction of one/or more sexually based offences involving a child, I reasonably suspect that Mr Mason does not pass the character test by virtue of s 501(6)(e) of the Act and that he has not satisfied me that he passes the character test. I find Mr Mason does not pass the character test. The Minister also found that the applicant did not pass the character test by virtue of ss 501(6)(a) and 501(7)(c). Nothing turns on this alternative finding. In his reasons, the Minister considered whether he should exercise the discretion conferred on him by s 501(2) to cancel the applicant’s visa under the following headings. Protecting the Australian community The Minister considered the above topic under the headings of “criminal conduct” and “risk to the Australian community”. Criminal conduct Regarding criminal conduct, the Minister’s reasons focussed on the applicant’s conviction for possessing child pornography. The Minister stated that he viewed the child pornography offences “as very serious” having regard to:… the abhorrent nature of the material which Mr MASON had in his possession, his recklessness over many years in downloading the images and the consequences for children involved in the production of such material, for which Mr MASON’s actions contributed to the demand … The Minister added that:I find that the sentence that Mr MASON received is a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered the court viewed the offending as very serious. In this context, the Minister’s reasons also noted that the applicant had been convicted of failing to comply with reporting obligations and of stealing a bicycle. With respect to the former, the Minister’s reasons noted that:Mr MASON advises that this offence occurred when his computer automatically downloaded an update which included a chat room feature. Upon discovery of the chat feature, Mr MASON changed his email and advised the sex offender registry he had changed his email.With respect to the latter, these reasons noted that the applicant’s “only other offence was stealing (a bicycle) in 1973, for which he was released on probation”. I interpolate that the applicant would have been aged about 15 in 1973.Risk to the Australian Community

Ratio Decidendi

Legal Principle Established

The applicant has sought judicial review of a decision made on 13 February 2018 by the respondent Minister to cancel his Class BB, subclass 155 Five Year Resident Return Visa pursuant to s 501(2) of the Migration Act 1958 (Cth). At the relevant time, s 501(2) provided:(2) The Minister may cancel a visa that has been granted to a person if: (a)the Minister reasonably suspects that the person does not pass the character test; and (b)the person does not satisfy the Minister that the person passes the character test. Section 501(6)(a) and (e) further provided: (6) For the purposes of this section, a person does not pass the character test if:(a)the person has a substantial criminal record (as defined by subsection (7)); or…(e)a court in Australia or a foreign country has:(i)convicted the person of one or more sexually based offences involving a child; or(ii)found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; …… Section 501(7)(c) stated:(7)For the purposes of the character test, a person has a substantial criminal record if: …(c)the person has been sentenced to a term of imprisonment of 12 months or more; … On 1 December 2008, in an appeal to the County Court of Victoria, the applicant was convicted of the offence of knowingly possessing child pornography (possessing child pornography) and sentenced to 14 months imprisonment, with a non-parole period of seven months. Paragraphs 501(6)(a) and (e) of the Migration Act were therefore potentially engaged. Since his was a registrable offence under the Sex Offender Registration Act 2004 (Vic), the applicant’s name was placed on the Sex Offender Register, and he was ordered to report to Victoria Police for a period of eight years. There were no sentencing remarks made available to the Minister when he came to make the decision under review. In lieu of such remarks, the Minister relied on the police summary of charges, which stated that, in March 2008, the police had executed a search warrant at the applicant’s residence and found a large quantity of child pornography, including some extremely hard core pornography. In a statement submitted by the applicant to the Department and before the Minister at the time he made his decision, the applicant stated:When I committed the crime I was suffering and [sic] a mental illness, and pleaded guilty to the charge. ...This was broadly consistent with statements made by the applicant in his completed personal circumstances form dated 9 November 2017 (mentioned below) in seeking to explain the factors that contributed to this offending. On 25 February 2009, less than a year after his conviction, a Departmental officer wrote to the applicant to notify him that consideration was being given to cancellation of his visa under s 501 of the Migration Act “on character grounds”. By a letter dated 10 June 2009, the applicant was subsequently advised that “[a]fter taking into account all relevant considerations, a delegate of the Minister … made a decision not to cancel [his] visa on character grounds at this time” (underlining original). This letter also contained the following:Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered. (Bold in original)The applicant completed a form of acknowledgement that he had received with this notification, and returned the relevant document to the Department as requested.