Pera v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 1318
•31 October 2023
FEDERAL COURT OF AUSTRALIA
Pera v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1318
Appeal from: Application for extension of time: AAT decision, delivered on 19 December 2022 by Senior Member D. J. Morris File number: VID 136 of 2023 Judgment of: SNADEN J Date of judgment: 31 October 2023 Catchwords: MIGRATION – application for extension of time seeking judicial review of visa cancellation decision – Minister concedes Tribunal’s decision was a product of jurisdictional error – whether court is satisfied error has occurred that justifies the proposed relief – extension of time granted – writs of certiorari and mandamus issued Legislation: Migration Act 1958 (Cth) ss 499, 501 Cases cited: Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 293 FCR 509
VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 9 Date of hearing: Determined on the papers Solicitor for the Applicant: MinterEllison Solicitor for the First Respondent: Victoria Legal Aid Solicitor for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
VID 136 of 2023 BETWEEN: WILLIAM PERA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
31 OCTOBER 2023
THE COURT ORDERS THAT:
1.Pursuant to s 477A of the Migration Act 1958 (Cth), the time for making the present application is extended up to and including 3 March 2023.
2.A writ of certiorari issue, removing into this court and quashing the decision of the second respondent made on 19 December 2022 in matter No. 2022/8032.
3.A writ of mandamus issue, requiring that the second respondent determine according to law the application for review that was the subject of the decision referred to in order 2.
4.The first respondent pay the applicant's costs fixed in the amount of $7,143.00.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
Prior to 4 October 2021, the applicant was the holder of a Special Category (Class TY) (Subclass 444) temporary visa. On that date, his visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the “Act”). That cancellation followed his being convicted of various offences, including in relation to breaches of intervention orders, assault and threats to kill. The Tribunal noted that the applicant’s offending was directed toward “former intimate partners”.
The applicant subsequently applied to have that cancellation revoked pursuant to s 501CA(4) of the Act. On 27 September 2022, a delegate of the first respondent declined that application. The applicant then sought to have that decision reviewed by the second respondent (the “Tribunal”).
On 19 December 2022, the Tribunal affirmed the decision of the delegate not to revoke the cancellation of the applicant’s visa. By an application dated 2 March 2023, the applicant seeks an extension of time within which to file an originating application for relief in the form of prerogative writs to set that decision aside and to require that the Tribunal redetermine it.
Two grounds are proposed to be pressed but it is only necessary to consider the first. It focuses upon the Tribunal’s compliance with a Ministerial direction issued under s 499 of the Act, specifically “Direction No. 90”. Amongst other things, Direction No. 90 obliged the Tribunal to consider, in making its decision, the “Australian Government’s concerns regarding family violence offending” (as the applicant summarised it). The applicant contends that, in deciding not to revoke the cancellation of his Visa (or to affirm the decision made to that end by the Minister’s delegate), the Tribunal misapplied Direction No. 90. Specifically, he contends that it did so because it failed to consider whether the “former intimate partners” against whom his offending was carried out qualified as members of his family. He submits that, by proceeding in that way, the Tribunal’s decision was made otherwise than in a way that was authorised by the Act; and that its error was sufficiently material as to warrant the prerogative relief that he hopes to secure.
The Minister concedes both that an extension of time should be granted and that the Tribunal’s decision was a product of jurisdictional error as described above. It is, therefore, proposed by consent that the applicant should have the prerogative relief for which he presses.
In VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921, Colvin J made the following relevant observations about orders proposed by consent in matters such as the present (at [3]-[5]):
Even where the proper contradictor to an application for judicial review consents to the grant of relief, the Court must be satisfied that there is error. As explained by French J in Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 at [12], there is a public interest that requires the Court to specify the error and its satisfaction that an error has occurred which justifies the proposed relief being granted within the public law jurisdiction of the Court. It is necessary for this to occur because it is not a matter for the parties to determine by agreement whether the extent of executive authority has been exceeded. Constitutional integrity requires that the limits upon the extent of judicial power to confine or constrain the exercise of executive power are carefully observed.
Further, in cases where the proposed orders will result in the matter being remitted, it is necessary for sufficient guidance to be provided whether by way of note to the orders (where that will be sufficient) or by publication of reasons to enable a further exercise of power according to law as determined by the Court. It is always a significant step for a court to exercise its jurisdiction to supervise the actions of the repositories of executive power and it is appropriate that due respect be afforded to a Tribunal, decision‑maker or other repository by communicating the reasons for the grant of public law relief.
Finally, in many instances where public law relief is granted, the orders will affect the exercise of powers which have significance beyond the interests of the parties before the Court and for that reason the Court should make plain why it has granted relief.
I have reviewed the reasons that were published in support of the Tribunal’s decision. Having done so, I am satisfied that the Minister’s concession is appropriately made. Direction No. 90 obliged the Tribunal to take account of the Australian Government’s concerns about visa holders engaging in “family violence”. That concept was defined so as to include violence against a “member of the [visa holder’s] family”. In order that it could properly take account of the consideration that Direction No. 90 required that account be taken, the Tribunal first had to consider whether the “former intimate partners” against whom the applicant had offended were “member[s] of [his] family”.
It did not do so. The circumstances of this matter thus bear an obvious resemblance to those that were considered in Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 293 FCR 509 (Farrell, Moshinksy and Burley JJ). There, the full court accepted that jurisdictional error relevantly lay in the Tribunal’s failure to consider whether domestic violence offending that had been committed against an intimate partner (or former intimate partner) was offending that had been committed against a member of the former visa‑holder’s family.
That being so, I am satisfied that the Tribunal’s decision is a product of jurisdictional error, which this court should correct via the granting of prerogative relief. With minor amendment, the orders proposed by consent are appropriate in that regard and shall be made.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate:
Dated: 31 October 2023
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