FEDERAL COURT OF AUSTRALIA
Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143
Appeal from: Application for Review: Stoneley v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1591 File number: WAD 180 of 2024 Judgment of: CHARLESWORTH J Date of judgment: 4 March 2025 Catchwords: MIGRATION – judicial review of a decision under the Migration Act 1958 (Cth) – decision-maker bound to comply with a direction issued under s 499 of the Act – whether decision-maker failed to have regard to mandated considerations under the direction – whether the decision-maker reasoned in a way that was illogical or irrational – application dismissed Legislation: Migration Act 1958 (Cth) ss 189, 196, 197C, 198, 474, 499, 500, 501, 501CA, 501E, 501F Cases cited: Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Campbell-Smith v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 306 FCR 153
CJO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1228
CKL21 v Minister for Home Affairs (2022) 293 FCR 634
Craig v South Australia (1995) 184 CLR 163
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Plaintiff M1/ 2021 v Minister for Home Affairs (2022) 275 CLR 582
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 53 Date of hearing: 25 February 2025 Counsel for the Applicant: Mr C Fitzgerald Solicitor for the Applicant: Zarifi Lawyers Counsel for the First Respondent: Mr T Lettenmaier Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
WAD 180 of 2024 BETWEEN: JORDAN DAVID TUNUI STONELEY
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
4 MARCH 2025
THE COURT ORDERS THAT:
1.The amended originating application is dismissed.
2.The applicant is to pay the first respondent’s costs of and incidental to the amended originating application in a fixed sum to be determined by a Registrar of the Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J
The applicant…
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- AGLC
- Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143
- Case
- [2025] FCA 143
- Decision Date
CaseChat Overview and Summary
The court held that the Tribunal had correctly identified the contextual factors leading to its conclusion that Stoneley presented an unacceptable risk, despite his rehabilitative efforts. The Tribunal had explicitly noted that while Stoneley's efforts had reduced the risk of recidivism from moderate to high to moderate, it remained unacceptable. The court found that the Tribunal's reasoning was neither illogical nor irrational, and it dismissed the application on the grounds that the Tribunal had adequately considered all relevant factors. The court also noted that the applicant's submissions misrepresented the Tribunal's reasoning.
The court dismissed the amended originating application and ordered that Stoneley pay the costs of the first respondent, the Minister, in a sum to be determined by a Registrar of the Court. This decision underscores the importance of the Tribunal adhering to the mandated considerations when making decisions under the Migration Act and ensures that such decisions are subject to appropriate scrutiny.
Orders
Orders of the court
1. The amended originating application is dismissed.
2. The applicant is to pay the first respondent’s costs of and incidental to the amended originating application in a fixed sum to be determined by a Registrar of the Court.
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
Ratio Decidendi
Legal Principle Established
Paragraph 9 relevantly provided:9. Other considerations(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):a)legal consequences of the decision;b)extent of impediments if removed;c)impact on victims;d)impact on Australian business interests9.1 Legal consequences of decision under section 501 or 501CA(1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.(2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.(3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim. The requirement to consider the extent of a non-citizen’s impediments if removed included a requirement to take into account the non-citizen’s age and health, any substantial language or cultural barriers and any social, medical or economic support that may be available (or lack thereof): Direction 99, [9.2]. The applicant made representations to the effect that he identified as an Australian and that if his visa was not restored his inability to return to Australia would have significant human consequences, including that he would be separated from his son, other family members and a close friend. He said he would be “devastated” as a result. Before the Tribunal he elaborated on those representations as follows:111… If I was to be removed from Australia, I wouldn’t be able to hug [my son], kiss him or give him a high-five. …112It is clear that if I am removed from Australia he wouldn’t be coming with me. As his father I clearly want my son to be with me no matter where that may be. That would not be an option though as his mother will reside here in Australia …