Newall v MIMA

Case [1999] FCA 1624

FEDERAL COURT OF AUSTRALIA

Newall v Minister for Immigration and Multicultural Affairs [1999] FCA 1624

MIGRATION – Migration Act 1958 (Cth) – decision by delegate of Minister not to revoke cancellation of visa – whether proper consideration given by delegate to issue of risk to health, safety or good order of Australian community

Migration Act 1958 (Cth) ss 65(1), 116(1), 128, 129(1), 131, 132, 476

Tien v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 405, followed
Bank of Western Australia v Federal Commissioner of Taxation (1994) 125 ALR 605, followed
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, followed
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719, applied

MARK STEPHEN NELSON NEWALL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 11 of 1999

BRANSON J
SYDNEY
24 NOVEMBER 1999


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 11 of 1999

BETWEEN:

MARK STEPHEN NELSON NEWALL
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:

BRANSON J

DATE OF ORDER:

24 NOVEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The decision of the delegate of the Minister for Immigration and Multicultural Affairs be affirmed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 11 of 1999

BETWEEN:

MARK STEPHEN NELSON NEWALL
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:

BRANSON J

DATE:

24 NOVEMBER 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

  1. This is an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review by the Court of a decision made by a delegate of the respondent not to revoke the cancellation of the applicant’s Electronic Travel Authority (Visitor) visa.

    FACTS

  2. The applicant was granted an Electronic Travel Authority (Visitor) visa on 12 May 1998.  The visa was valid for a period of twelve months and authorised the applicant to stay in Australia for a period of three months.  The applicant applied for the visa to enable him to make a short visit to Australia to meet the parents of his girlfriend who live in Queensland.

  3. By letter dated 13 May 1998, the applicant wrote to the Australian High Commission in London.  He expressed his concern that during the process leading to the granting of his visa no questions were asked as to his status.  He advised that he had been arrested and convicted in the United Kingdom for an offence committed in October 1987 and had consequently served three years in prison from 1993 until 1996.  The applicant sought confirmation that he would be allowed to enter Australia.

  4. By letter dated 1 July 1998 the applicant was advised by a Senior Migration Officer at the Australian High Commission that his visa had been cancelled under s 128 of the Act “because it is considered that your presence in Australia would be a risk to the…

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Details
AGLC
Newall v MIMA [1999] FCA 1624
Case
[1999] FCA 1624
Decision Date

CaseChat Overview and Summary

Newall sought judicial review of a decision by a delegate of the Minister for Immigration and Multicultural Affairs not to revoke the cancellation of his Electronic Travel Authority (Visitor) visa. The delegate had cancelled the visa under s 128 of the Migration Act 1958 (Cth) on the ground that Newall's presence in Australia would be a risk to the safety or good order of the Australian community, referencing section 116(1)(e) of the Act. Newall sought to have the cancellation of his visa revoked, but the delegate refused to do so under s 131 of the Act. Newall contended that the delegate failed to consider the correct legal question when deciding whether to revoke the cancellation of his visa, namely, whether the ground for cancellation provided for by s 116(1)(e) existed. He argued that the delegate must have either acted on an erroneous interpretation of s 116(1)(e) of the Act or, alternatively, have incorrectly applied that paragraph to the facts as found by her.

The court considered that the delegate had correctly identified the relevant legal question to be whether the ground for cancellation provided for by s 116(1)(e) existed. The court found that the delegate had considered all relevant matters and had made a decision in accordance with the law. The court affirmed the decision of the delegate not to revoke the cancellation of Newall's visa. The court did not find it necessary to determine whether the "particulars" provided to Newall satisfied the requirement of s 129(1)(b) of the Act.

Orders

Orders of the court

1. The decision of the delegate of the Minister for Immigration and Multicultural Affairs be affirmed.

Background

Background to the litigation

This is an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review by the Court of a decision made by a delegate of the respondent not to revoke the cancellation of the applicant’s Electronic Travel Authority (Visitor) visa.FACTS The applicant was granted an Electronic Travel Authority (Visitor) visa on 12 May 1998. The visa was valid for a period of twelve months and authorised the applicant to stay in Australia for a period of three months. The applicant applied for the visa to enable him to make a short visit to Australia to meet the parents of his girlfriend who live in Queensland. By letter dated 13 May 1998, the applicant wrote to the Australian High Commission in London. He expressed his concern that during the process leading to the granting of his visa no questions were asked as to his status. He advised that he had been arrested and convicted in the United Kingdom for an offence committed in October 1987 and had consequently served three years in prison from 1993 until 1996. The applicant sought confirmation that he would be allowed to enter Australia. By letter dated 1 July 1998 the applicant was advised by a Senior Migration Officer at the Australian High Commission that his visa had been cancelled under s 128 of the Act “because it is considered that your presence in Australia would be a risk to the safety or good order of the Australian community – reference Section 116(1)(e) of the Migration Act 1958.” By the same letter the applicant was advised of his entitlement under the Act to apply to have the cancellation of his visa revoked. The applicant made submissions by a solicitor in an endeavour to have the cancellation of his visa revoked. He provided nine references/testimonials as to his character, including one from the Governor of the prison in which he served his sentence and others from business colleagues and personal friends. By letter dated 17 December 1998 from a Senior Migration Officer at the Australian High Commission the applicant was advised:“After considering your response, the Department has decided not to revoke the cancellation of your visa under section 131 of the Act. Although you have has (sic) been convicted on only one occasion in August 1994 the two offences of two counts of assisting after a murder were very serious and you were sentenced to 6 years imprisonment on each count, the second to run concurrently. I understand the offences were committed in 1987, you were extradited from France in 1993 to face the above charges and were released from prison on parole in 1996. I have taken into account the unusual circumstances of the offence, references from the governor of the prison and the prison education officer concerning your conduct in prison, the decision of the parole board and 6 references from former colleagues and friends and the fact that you stated a wish to visit the family of your girlfriend in Australia. However, in all the circumstances including the seriousness of your convictions and the fact that you were only released on parole two years ago I am satisfied that there was a ground for cancellation ie the ground in section 116(1)(e) that the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community and I do not find that there is a reason to revoke the cancellation.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BRANSON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: BRANSON J

There is no obligation on the Minister, or his or her delegate to give reasons for a decision made under s 131 of the Act. Under s 132 the only obligation is to notify the visa holder or former visa holder of the decision in writing (regulation 2.49 of the Migration Regulations 1994).CONSIDERATION The applicant’s primary contention is that the delegate of the respondent who made the decision not to revoke the cancellation of the applicant’s visa failed to consider the real question that it was her duty to consider, namely, whether the ground for cancellation provided for by s 116(1)(e) of the Act existed. As I understand this contention, it involves the submission that the delegate must have either acted on an erroneous interpretation of s 116(1)(e) of the Act or, alternatively, have incorrectly applied that paragraph to the facts as found by her. Consideration of this matter is complicated by the failure of each of the applicant’s solicitor and the delegate of the respondent who made the decision not to revoke the cancellation of the applicant’s visa, to refer to the two separate circumstances in which s 131 authorises the revocation of the cancellation of a visa (see also s 129(1)(c)-(e)). The section authorises the revocation of the cancellation first, where the Minister is not satisfied that there was a ground for the cancellation, and secondly, where the Minister is satisfied that there is another reason why the cancellation should be revoked. That is, in effect, the section authorises revocation where the ground initially relied upon to support the revocation is successfully challenged by the former visa holder or where additional information is provided to the Minister which satisfies him or her that it was not appropriate to act on such ground. The notice of cancellation provided to the applicant as required by s 129 of the Act states that the applicant’s visa was cancelled on the ground that:“… it is considered that your presence in Australia would be a risk to the safety or good order of the Australian community – reference Section 116(1)(e) of the Migration Act 1958.” The only “particulars of that ground and of the information … because of which the ground was considered to exist” given were:“The Department of Immigration and Multicultural Affairs … has written advice that you were convicted and sentenced to a period of six years imprisonment on 8 August 1994 on two counts of being an accessory after the fact to murder, both sentences to be served concurrently.When you applied for the Electronic Travel Authority granted to you on 12 May 1998 full details concerning your previous record of criminal conduct were not known to the issuing officer. Had your previous criminal antecedents (sic) been fully disclosed at the time of your application for an ETA, you would have been referred for further consideration and you may not have been granted a visa at the time.” Although it is not a matter which I am required to determine on the present application, I am inclined to doubt that the above “particulars” satisfy the requirement of s 129(1)(b) of the Act. They do not, as it seems to me, explain to the applicant why the fact of his conviction and sentence on 8 August 1994 satisfied the Minister’s delegate that his presence in Australia would be a risk to the safety and good order of the Australian community. That is, they do not make it clear whether the Minister’s delegate was satisfied that the mere presence in Australia of a person with his criminal record would be a risk to the safety or good order of the Australian community or whether the Minister’s delegate was satisfied that his presence in Australia would create a risk that he would engage in conduct in Australia that would place at risk the safety or good order of the Australian community.