Smith v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Smith v Minister for Home Affairs [2018] FCA 1594

File number: NSD 1145 of 2018
Judge: ROBERTSON J
Date of judgment: 24 October 2018
Catchwords:

MIGRATION – application for judicial review of decision of the Minister, acting personally, not to revoke the decision to cancel the applicant’s visa – Minister not satisfied that there was another reason why the original decision should be revoked – whether failure on the part of the Minister to inquire – whether failure on the part of the Minister to take into account relevant considerations – whether Minister’s reasons or decision legally unreasonable

EVIDENCE – judicial review – where ground of unreasonable failure to inquire – whether evidence admissible to prove not only that the inquiry, if made, would have yielded a useful result, but also to prove the truth of the result of such an inquiry – whether use of the material should be limited pursuant to s 136 of the Evidence Act 1995 (Cth)

Legislation:

Evidence Act 1995 (Cth) s 136

Migration Act 1958 (Cth) s 501CA(4)

Cases cited:

Ashraf v Minister for Immigration and Border Protection [2018] FCAFC 50

BBP15 v Minister for Immigration and Border Protection [2018] FCA 501

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352

Goundar v Minister for Immigration and Border Protection [2016] FCA 1203

Hay v Minister for Home Affairs [2018] FCAFC 149

Hooton v Minister for Home Affairs [2018] FCAFC 142

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Minister for Immigration and Border Protectionv Tesic [2017] FCAFC 93; 251 FCR 23

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611

Viane vMinister for Immigration and Border Protection [2018] FCAFC 116
Date of hearing: 19 October 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 70
Counsel for the Applicant: Mr CR Ireland (Pro Bono)
Counsel for the Respondent: Mr DA Hughes
Solicitor for the Respondent: DLA Piper Australia

ORDERS

NSD 1145 of 2018
BETWEEN:

ROBERT LYNDON SMITH

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:

ROBERTSON J

DATE OF ORDER:

24 OCTOBER 2018

THE COURT ORDERS THAT:

1.The applicant’s application, as further amended, for judicial review of the decision of the Minister made on 24 May 2018 is dismissed.

2.The applicant is to pay the respondent’s costs, as agreed or assessed.

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


REASONS FOR JUDGMENT

ROBERTSON J:

  1. By his amended originating application, the applicant seeks to set aside the Minister’s decision of 24 May 2018 made under s 501CA of the Migration Act 1958 (Cth) not to revoke the original decision of 30 January 2017 to cancel…

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Details
Case
[2018] FCA 1594
Decision Date

CaseChat Overview and Summary

The case of Smith v Minister for Home Affairs involved the applicant, Smith, challenging a decision by the Minister for Home Affairs not to revoke a decision to cancel Smith's visa. The applicant argued that the Minister's decision was legally unreasonable and that the Minister had failed to properly consider relevant evidence. The dispute was heard in the Federal Court of Australia, where the court was required to determine whether the Minister had erred in his decision-making process.

The primary legal issues before the court were whether the Minister had failed to inquire into relevant matters, whether he had failed to take into account pertinent considerations, and whether his decision was legally unreasonable. The applicant argued that the Minister should have considered additional evidence that was not presented to him but became available later. The Minister, on the other hand, contended that he had adequately considered all representations and evidence before him.

The court found that the Minister had considered all representations made by the applicant and had made findings accordingly. The Minister was not required to inquire further or consider additional evidence that was not presented to him. The court held that the Minister's decision was not legally unreasonable and that the applicant had not demonstrated any jurisdictional error. The court emphasised that the applicant had not provided certain critical information to the Minister that might have influenced the outcome. The court concluded that the application for judicial review was not successful and dismissed the application with costs.

The final orders of the court were that the applicant's application for judicial review was dismissed and that the applicant was to pay the Minister's costs as agreed or assessed. This decision underscores the importance of presenting all relevant information to decision-makers in a timely manner and highlights the limited grounds on which judicial review may be sought in administrative law cases.

Orders

Orders of the court

1. The applicant’s application, as further amended, for judicial review of the decision of the Minister made on 24 May 2018 is dismissed.

2. The applicant is to pay the respondent’s costs, 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

To the extent that the applicant submitted that, even in the absence of any duty to inquire arising from the material before the Minister or there being more than one available inference from Mr Long’s letter, the Minister’s decision was vitiated by jurisdictional error arising from a failure to exercise or complete his statutory task on the basis of the material that was before him (whether framed by reference to legal unreasonableness, illogical and irrational reasoning or otherwise) I reject that submission. The Minister considered each representation made by the applicant and made findings accordingly. No jurisdictional error has been made out. The Minister found, at [19], that it was particularly important for Corey to be reunited with his father if Corey’s current psychological and behavioural issues were to be resolved. Conclusion and orders This is not a case that succeeds on judicial review. What appears to have happened is that, apparently through lack of advice, the applicant did not make representations to the Minister about important issues concerning the future care of Corey, and, to a lesser extent, Jessica, which post-dated the representations the applicant did make but preceded the date of the Department’s brief to the Minister and the Minister’s decision. It is a case in which, where possible, the Minister’s decision should be reconsidered so that what now appears, from the information not provided by the applicant to the Minister, may be the unhappy future of at least one Australian child is taken into account. I would dismiss the application, with costs. The orders I make are as follows: the applicant’s application for judicial review is dismissed. The applicant is to pay the Minister’s costs as agreed or assessed.

Ratio Decidendi

Legal Principle Established

Turning to the daughter’s condition, grounds 7 and 9, the Minister submitted that as observed by him at [18], Mr Long’s letter referred to the daughter as having an intellectual disability. No details were given, and the disability was not referred to by either the applicant or the mother of the child. In those circumstances, it was open to the Minister to decide, as he did, that the disability was not such as to affect the weight to be given to the best interests of the daughter. No error was shown, nor was there any obligation on the Minister to inquire about the extent of the daughter’s disabilities.Consideration I consider first the matters raised by the amended grounds 3A-3D since, apart from those grounds, the substance of the applicant’s case depended on whether or not the Minister was obliged to go further than the matters put in the representations made to him by the applicant or in support of the applicant’s application. In my opinion, it could not be said that the only available inference from Mr Long’s letter was that Corey could not continue to safely live with his mother without unacceptable danger to her and her other children. The substance of what was put by counsel for the applicant was that the Minister made a jurisdictional error in failing to draw that inference, it being, as a matter of fact-finding, the only inference. In my opinion the Minister was entitled to find, and this finding was not directly challenged, that Corey lived with his mother. Any inference that could be drawn from the letter needs to be considered in that context and also in the context that the material before the Minister otherwise showed that there were no court orders relating to Corey. For the purposes of judicial review, whether the inference was available to be drawn is not to the point as this claimed jurisdictional error could only be made out if the fact that Corey could not live with his mother was the only available inference. In my opinion this ground is substantially affected by hindsight, being the later material, the subject of the applicant’s affidavit, that became available to the applicant but which the applicant did not put before the Minister. Ground 3A therefore fails. In my opinion, ground 3B fails for the same reason. However as a matter of fact it is not necessarily the corollary of ground 3A, that is, if the only inference was that Corey could not live with his mother then in the circumstances of his father’s deportation Corey would be required to go into State care or incarceration. Certainly Mr Long’s letter indicated the applicant father’s assent to Corey living with him but the material does not deal with whether or not another relation would be willing to have Corey live with them. Grounds 3C and 3D are consequential and cannot succeed in light of the failure of grounds 3A and 3B. As I have said, the substance of the applicant’s case depended on whether or not the Minister was obliged to go further than the matters put in the representations made to him by the applicant or in support of the applicant’s application. Unless that contention can be made good, the majority of the applicant’s submissions, including their invocation of the merits, fall away.