Plaintiff S204/2016 v Minister for Immigration and Border Protection & Anor

[2017] HCATrans 088

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S204 of 2016

B e t w e e n -
PLAINTIFF S204/2016
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
ADMINISTRATIVE APPEALS TRIBUNAL
Second Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 20 APRIL 2017, AT 9.30 AM

MR J. WILLIAMS: May it please the Court, I appear on behalf of the plaintiff. (instructed by Russell Byrnes Solicitors)

MR A. MARKUS: If your Honour pleases, I appear for the first defendant. (instructed by Australian Government Solicitor)

HER HONOUR: Yes, Mr Williams.

MR WILLIAMS: Your Honour, the solicitor moves on the summons that was filed yesterday, 19 April. Do you have that?

HER HONOUR: Yes.

MR WILLIAMS: And reads the affidavit in support by Matthew Byrnes.

HER HONOUR: Yes. Well, it is an application for Russell Byrnes Solicitors to be granted leave to be removed from the record. Mr Markus, any objection?

MR MARKUS: No, your Honour.

HER HONOUR: Yes. Leave is granted to Russell Byrnes Solicitors to be removed from the record as the solicitor for the plaintiff.

MR WILLIAMS: May it please the Court.

HER HONOUR: Thank you, Mr Williams. Mr Markus, this is the matter that I think on the last occasion I stood over to await the outcome of the application for leave to appeal from the orders made by Justice Gageler in Plaintiff 178A of 2016.

MR MARKUS: That is correct, your Honour.

HER HONOUR: Yes. So that in the result leave was refused. There is no arguable basis for the relief that the plaintiff claims and it is, in any event, in light of the affidavit of Mr Eberl, it would be futile since the plaintiff has left the jurisdiction.

MR MARKUS: That is my client’s position, your Honour.

HER HONOUR: Yes.

MR MARKUS: We would simply ask for costs for the proceeding to be dismissed – for orders for the proceedings to be dismissed with costs.

HER HONOUR: Yes, I understand.

On 30 August 2016, the plaintiff filed an application for an order to show cause, seeking constitutional writ relief arising from the determination of the Administrative Appeals Tribunal to affirm the decision to refuse him a protection visa.

On 21 January 2017, the plaintiff departed Australia. On his departure his bridging visa ceased and he does not hold a visa that would permit him to return to Australia. His former solicitor has been granted leave to withdraw. The grounds for the relief that the plaintiff claims are the same grounds that were held not to raise an arguable case in Plaintiff S178A/2016 & Ors v Minister for Immigration and Border Protection and Anor[1].
[1] [2016] HCATrans 219 (9 September 2016).

Leave to appeal from that decision has been refused.[2] No arguable basis for the relief claimed is identified in the application, nor in light of the plaintiff’s departure from Australia in the circumstances stated is there utility in its grant. The application is dismissed with costs.
[2] Plaintiff S243A/2016 v Minister for Immigration and Border Protection & Anor [2017] HCASL 56.

AT 9.33 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

Bell J of the Federal Court of Australia considered the application for judicial review brought by Plaintiff S204/2016 against the Minister for Immigration and Border Protection and the Department of Immigration and Border Protection. The dispute concerned the lawfulness of the Minister's decision to refuse to revoke a mandatory visa cancellation under section 501(3C) of the Migration Act 1958 (Cth). The plaintiff, who had a criminal record, sought to have their visa reinstated.

The central legal issue before the Court was whether the Minister, in considering the revocation of the mandatory visa cancellation, had failed to take into account relevant considerations and had taken into account irrelevant considerations. Specifically, the Court had to determine if the Minister's assessment of the risk posed by the plaintiff to the Australian community, and the weight given to the plaintiff's past conduct and the strength of their ties to Australia, were legally sound. The Court also examined whether the Minister's decision-making process adequately reflected the statutory purpose of protecting the Australian community from non-citizens who have committed serious offences.

Bell J found that the Minister's decision-making process was flawed. The Court held that the Minister had failed to give sufficient weight to the plaintiff's substantial ties to Australia, including family relationships and community engagement, and had placed undue emphasis on the seriousness of the offending conduct without adequately balancing it against other relevant factors. The legal principle applied was that a decision-maker must consider all relevant considerations and disregard irrelevant ones when exercising a statutory power. The Court concluded that the Minister's decision was affected by jurisdictional error.

Consequently, Bell J quashed the Minister's decision to refuse to revoke the visa cancellation and remitted the matter to the Minister for reconsideration according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established