Prasad v Minister for Home Affairs - [2019] FCAFC 87

FEDERAL COURT OF AUSTRALIA
Prasad v Minister for Home Affairs [2019] FCAFC 87

Appeal from: Prasad v Minister for Home Affairs [2019] FCA 50

File number: NSD 232 of 2019

Judges: WIGNEY, BROMWICH AND BURLEY JJ

Date of judgment: 24 May 2019

Catchwords: MIGRATION – appeal from orders of a Judge of the Federal Court of Australia dismissing an application for judicial review of a decision not to revoke the automatic cancellation of the appellant’s visa on character grounds – held: appeal dismissed

Legislation: Migration Act 1958 (Cth) ss 501(3A), 501CA(3), 501CA(4)

Cases cited: Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 250 FCR 209

Date of hearing: 24 May 2019

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 14

Counsel for the Appellant: The Appellant appeared in person

Counsel for the Respondent: Ms A Douglas-Baker

Solicitor for the Respondent: Sparke Helmore

ORDERS

NSD 232 of 2019

BETWEEN:
JITENDA PRASAD

Appellant

AND:
MINISTER FOR HOME AFFAIRS

Respondent

JUDGES:

WIGNEY, BROMWICH AND BURLEY JJ

DATE OF ORDER:

24 MAY 2019

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs of and incidental to the appeal as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
Revised from transcript
THE COURT:

This is an appeal from orders made by a judge of this Court, dismissing an application for judicial review of a decision made by the Parliamentary Secretary to the Minister for Home Affairs, using the unofficial title “Assistant Minister for Home Affairs”: see Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 250 FCR 209 at [38]-[42]. The Minister was the respondent below, and is the respondent to this appeal. The Parliamentary Secretary had decided not to revoke the automatic cancellation of the appellant’s visa on character grounds.
The appellant is a Fijian national who arrived in Australia in 1995, aged 23 years. Apart from two brief trips outside Australia in 1997 and 2005, he has lived here since his arrival. He is now 48 years of age, has lived in Australia for over half his life and most of his adult life and considers Australia to be his home. He has two adult sons, one of whom has lived with him since the parents separated. The other son has lived with his mother and is estranged from the appellant.
On 29 September 2016, the appellant was convicted of domestic-related summary offences of assault occasioning actual bodily harm, stalking or intimidating and contravening a domestic violence order. He was sentenced in the Local Court of New South Wales to a backdated 24 months’ imprisonment, with a minimum term of 12 months to be served. On 16 February 2017, his visa was cancelled. On 28 July 2017, the appellant was detained following his release from prison. He has remained in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Prasad v Minister for Home Affairs

Details

AGLC: Prasad v Minister for Home Affairs [2019] FCAFC 87
Case: [2019] FCAFC 87
Decision Date: 24 May 2019

CaseChat Overview and Summary

In the case of Prasad v Minister for Home Affairs, the appellant, who had been subject to the automatic cancellation of their visa due to character grounds, sought judicial review of the Minister's decision not to revoke this cancellation. The Federal Court of Australia was tasked with determining the appeal against the orders of a judge that had dismissed the application for judicial review. The appellant argued that the Minister's decision was flawed as it did not adequately consider certain evidence and did not provide reasons for the decision.

The legal issues before the court involved the scope of judicial review in relation to the Minister's discretion under the Migration Act. Specifically, the court had to consider whether the Minister's decision was subject to judicial scrutiny for errors of law or whether it was an exercise of unreviewable discretion. Additionally, the court examined whether the reasons provided by the Minister were sufficient to meet the standards of administrative law.

In its judgment, the court held that the Minister's decision not to revoke the visa cancellation was an exercise of unreviewable discretion. The court found that the Minister's decision was not subject to the same level of scrutiny as decisions that are purely administrative in nature. Furthermore, the court determined that the reasons provided by the Minister were sufficient to support the decision, as they demonstrated that the Minister had considered the relevant factors and exercised his discretion appropriately. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of and incidental to the appeal as agreed or assessed.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of and incidental to the appeal 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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Appeal from:	Prasad v Minister for Home Affairs [2019] FCA 50
File number:	NSD 232 of 2019
Judges:	WIGNEY, BROMWICH AND BURLEY JJ
Date of judgment:	24 May 2019
Catchwords:	MIGRATION – appeal from orders of a Judge of the Federal Court of Australia dismissing an application for judicial review of a decision not to revoke the automatic cancellation of the appellant’s visa on character grounds – held: appeal dismissed
Legislation:	Migration Act 1958 (Cth) ss 501(3A), 501CA(3), 501CA(4)
Cases cited:	Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 250 FCR 209
Date of hearing:	24 May 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	14
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	Ms A Douglas-Baker
Solicitor for the Respondent:	Sparke Helmore

JUDGES:	WIGNEY, BROMWICH AND BURLEY JJ
DATE OF ORDER:	24 MAY 2019