Mason v Minister for Home Affairs

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.