Taivei v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Taivei v Minister for Home Affairs [2018] FCA 1129

File number: NSD 970 of 2018
Judge: FLICK J
Date of judgment: 2 August 2018
Catchwords:

MIGRATION – mandatory visa cancellation – where the Applicant did not satisfy the character test – where Minister refused to revoke decision to cancel the Applicant’s visa

ADMINISTRATIVE LAW – unreasonableness – noting of submissions made – failure to make findings of fact – procedural fairness – opportunity to be heard requires decision-maker to listen to what is being said

ADMINISTRATIVE LAW – overlapping grounds of review

Legislation:

Acts Interpretation Act1901 (Cth) s 25D

Migration Act1958 (Cth) ss 501, 501CA, 501G

Cases cited:

Abebe v Commonwealth [1999] HCA 14, (1999) 197 CLR 510

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, (2003) 236 FCR 593

Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592

Khan v Minister for Immigration and Ethnic Affairs (unreported, FCA, Gummow J, 11 December 1987)

Minister for Immigration and Border Protection v Eden [2016] FCAFC 28, (2016) 240 FCR 158

Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50, (2016) 237 FCR 305

Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33, (2013) 210 FCR 505

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, (2001) 206 CLR 323

MZAFS v Minister for Immigration and Border Protection [2016] FCA 75, (2016) 237 FCR 347

Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141, (2013) 229 FCR 290

Soliman v University of Technology, Sydney [2012] FCAFC 146, (2012) 207 FCR 277

Stojanovski v Assistant Minister for Immigration and Border Protection [2017] FCA 609

Williams v Minister for the Environment and Heritage [2003] FCA 535, (2003) 74 ALD 124

WZAQU v Minister for Immigration and Citizenship [2013] FCA 327, (2013) 233 FCR 534

Date of hearing: 24 July 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 49
Counsel for the Applicant: Mr J King
Solicitor for the Applicant: Craddock Murray Neumann
Counsel for the Respondent: Mr T Reilly
Solicitor for the Respondent: Mills Oakley

ORDERS

NSD 970 of 2018
BETWEEN:

TEVITA VUA TAIVEI

Applicant

AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:

FLICK J

DATE OF ORDER:

2 AUGUST 2018

THE COURT ORDERS THAT:

1.The decision of the Respondent made on 30 April 2018 is set aside.

2.The matter is remitted to the Respondent for reconsideration in accordance with law.

3.The Respondent is to pay the costs of the Applicant.

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


REASONS FOR JUDGMENT

  1. The Applicant in the present proceeding, Mr Tevita…

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Details
Case
[2018] FCA 1129
Decision Date

CaseChat Overview and Summary

In Taivei v Minister for Home Affairs, the Federal Court was asked to review a decision made by the Minister for Home Affairs under sections 501 and 501CA of the Migration Act 1958 (Cth) regarding the cancellation of a visa held by Mr Taivei. The Minister had determined that Mr Taivei did not satisfy the character test and thus decided to cancel his visa, which was subsequently not revoked despite representations made by Mr Taivei.

The primary legal issues for the Court to determine were whether the Minister's decision to not revoke the visa cancellation was unreasonable and whether the decision-making process complied with the principles of procedural fairness. Mr Taivei argued that the Minister failed to address critical aspects of his case, including his health condition, potential homelessness, employability, and the risk of premature death if removed from Australia. Counsel for Mr Taivei contended that these factors were interconnected and significantly impacted Mr Taivei's ability to survive in Fiji.

The Court found that the Minister did not adequately address Mr Taivei's submissions regarding the potential consequences of visa cancellation, particularly concerning his health and capacity to survive in Fiji. The Court held that the Minister's failure to make findings on these critical matters amounted to an unreasonable exercise of discretion and a breach of procedural fairness. Consequently, the Court set aside the Minister's decision and remitted the matter for reconsideration in accordance with the law. The Court further ordered the Minister to pay Mr Taivei's costs.

Orders

Orders of the court

1. The decision of the Respondent made on 30 April 2018 is set aside.

2. The matter is remitted to the Respondent for reconsideration in accordance with law.

3. The Respondent is to pay the costs of the Applicant.

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

Section 501CA provides (in relevant part) as follows: Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment) (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. … (3) As soon as practicable after making the original decision, the Minister must: (a)give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a)the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i)that the person passes the character test (as defined by section 501); or (ii)that there is another reason why the original decision should be revoked. (5)If the Minister revokes the original decision, the original decision is taken not to have been made. The claims made The challenge made to the Minister’s decision focusses upon the manner in which the Minister resolved claims made by Mr Taivei as to the consequences of non-revocation of the decision to cancel his visa. In particular, Mr Taivei claimed that the Minister failed to make findings with respect to his potential homelessness, employability, adequacy of medical care and the risk of premature death if he were to be removed from Australia. Counsel for Mr Taivei submitted that these grounds were “intertwined”, with the issue of his health as well as potential homelessness and unemployment all bearing on his “capacity to survive in Fiji”. It is common ground that Mr Taivei suffers from a rare Mycobacterium chimaera infection. That infection, it would seem, was acquired during cardiac surgery performed at Prince of Wales Hospital in Sydney in 2015. There are apparently only about 100 reported cases of this infection worldwide. The medical assessment that Mr Taivei requires prolonged treatment and monitoring thus featured prominently in the submissions made on his behalf to the Minister as to why the Minister should exercise the power conferred by s 501CA(4) to revoke the decision to cancel his visa. One document available to the Minister was a reference provided by Associate Professor Jeffrey Post of the Department of Infectious Diseases at Prince of Wales Hospital. The Associate Professor, on 16 February 2017, expressed his opinion as follows:I am writing as one of the specialist physicians involved in the care of Mr Gordon. He is currently an inpatient in the Intensive Care Unit at the Prince of Wales Hospital. He has disseminated Mycobacterium chimaera infection that has affected his lungs, his kidneys (with kidney failure and rupture of one kidney requiring removal of the kidney) and his bone marrow. He has been critically ill and despite the treatment provided his prognosis is not yet certain. The infection was almost certainly acquired in a hospital in Australia at the time that he underwent cardiac surgery to replace one of his heart valves. He probably has prosthetic valve (artificial heart valve) endocarditis (infection of the heart valve). Additional information about the condition is available on the NSW Health website. I would request that you provide any and all possible assistance to Mr Gordon and his family at this difficult time. If you require additional information please contact me via the Prince of Wales Hospital.

Ratio Decidendi

Legal Principle Established

It is concluded that the Minister’s decision should be set aside. Sections 501 & 501CA of the Migration Act Section 501 provides in relevant part as follows: Refusal or cancellation of visa on character groundsDecision of Minister or delegate—natural justice applies(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.…Decision of Minister—natural justice does not apply…(3A) The Minister must cancel a visa that has been granted to a person if:(a)the Minister is satisfied that the person does not pass the character test because of the operation of: (i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or…Character test(6) For the purposes of this section, a person does not pass the character test if:(a) the person has a substantial criminal record (as defined by subsection (7)); or…Otherwise, the person passes the character test.Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if:…(c)the person has been sentenced to a term of imprisonment of 12 months or more; or… Section 501CA provides (in relevant part) as follows: Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment) (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. … (3) As soon as practicable after making the original decision, the Minister must: (a)give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a)the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i)that the person passes the character test (as defined by section 501); or (ii)that there is another reason why the original decision should be revoked. (5)If the Minister revokes the original decision, the original decision is taken not to have been made. The claims made The challenge made to the Minister’s decision focusses upon the manner in which the Minister resolved claims made by Mr Taivei as to the consequences of non-revocation of the decision to cancel his visa. In particular, Mr Taivei claimed that the Minister failed to make findings with respect to his potential homelessness, employability, adequacy of medical care and the risk of premature death if he were to be removed from Australia. Counsel for Mr Taivei submitted that these grounds were “intertwined”, with the issue of his health as well as potential homelessness and unemployment all bearing on his “capacity to survive in Fiji”.