Taylor v Minister for Immigration and Multicultural Affairs [2025] FCA 517
File number(s):
NSD 1369 of 2024
Judgment of:
STELLIOS J
Date of judgment:
20 May 2025
Catchwords:
MIGRATION – application for extension of time to lodge application for judicial review of migration decision – extension of time granted – application for judicial review of Minister’s decision under s 501BA(2) of the Migration Act 1958 (Cth) – whether decision was legally unreasonable
[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.
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AGLC
Taylor v Minister for Immigration and Multicultural Affairs [2025] FCA 517
Case
[2025] FCA 517
Decision Date
CaseChat Overview and Summary
In Taylor v Minister for Immigration and Multicultural Affairs, the applicant sought an extension of time to lodge an application for judicial review of the Minister's decision to cancel his visa under section 501BA(2) of the Migration Act 1958 (Cth). The applicant argued that the Minister's decision was legally unreasonable. The Federal Court allowed the application for an extension of time but dismissed the review application. The court found that the Minister's decision was not legally unreasonable, and the application for judicial review was dismissed.
The central legal issue in the case was whether the Minister's decision to cancel the applicant's visa was legally unreasonable. The court needed to determine if the Minister exercised the discretion under section 501BA(2) reasonably. The applicant argued that the Minister's decision was legally unreasonable, but the court found that the Minister's decision-making process was sound and aligned with the statutory criteria. The court noted that the Minister was satisfied that the applicant did not pass the character test due to a substantial criminal record and that the cancellation was in the national interest. The Minister considered the protection of the community and the expectations of the Australian community, finding that the applicant's serious criminal history warranted visa cancellation. The court concluded that the Minister's decision was not legally unreasonable, as it was based on a proper consideration of the statutory criteria and relevant factors.
Orders
Orders of the court
1. Pursuant to s 477A(2) of the Migration Act 1958 (Cth), the time within which the applicant may file an originating application for review of the decision of the respondent dated 8 June 2024 be extended to 27 September 2024.
2. The draft originating application included with the extension of time application filed on 27 September 2024, as amended by the amended originating application filed on 11 February 2025, be treated as an originating application that was filed on 27 September 2024.
3. The originating application for review be dismissed.
4. The applicant pay the respondent’s costs of the proceedings to be 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
In short, while I have allowed the application for an extension of time under s 477A(2) of the Act for the applicant to lodge his application, I have dismissed the review application for the reasons that follow.THE MINISTER’S DECISION In his statement of reasons dated 8 June 2024, the Minister identified that, under s 501BA(3) of the Act, the rules of natural justice do not apply to a decision under s 501BA(2) and, therefore, he was not required to give the applicant an opportunity to be heard before making the decision. While s 501BA(3) of the Act did not prohibit him from affording the applicant an opportunity to be heard before making the decision, the Minister chose to proceed without doing so. The Minister recognised that, thereby, the applicant was unable to advance reasons why an adverse decision should not be made. However, the Minister indicated that he had given consideration to information previously given by the applicant in relation to the original request for revocation and the Tribunal proceeding (at [8]–[10]). Not all of the Minister’s reasons are relevant to this review application. However, it is useful to give an extended summary of the Minister’s reasoning process and to set out the relevant passages in full.Character test The Minister first found that the applicant did not pass the character test because he had a substantial criminal record (ss 501(6)(a) and 501(7)(c)). Accordingly, the Minister was satisfied that the condition under s 501BA(2)(a) was met (at [11]–[13]).National interest The Minister then considered whether cancellation of the applicant’s visa was in the “national interest”. He considered that “matters of national interest include, amongst other things, the protection of the community, the prevention of conduct constituting family violence and the expectations of the Australian community” (at [17]). Protection of the community Under the heading of “Protection of the community”, the Minister considered the following matters (at [18]–[42]):·The applicant’s offending involved violence, crimes of a violent nature against women, acts of family violence, and crimes against government officials. The Minister found the applicant’s “criminal offending to be serious and the aspects of his criminality involving violence and violence against women to be very serious” (at [31]);·Future reoffending had the potential to cause injury and harm to members of the Australian community; and·There was a real likelihood that the applicant would reoffend. Taking these matters into account, the Minister considered “that the need to protect the Australian community from criminal or other serious conduct weigh[ed] heavily in support of visa cancellation in this case in the national interest” (at [43]).Expectations of the Australian Community Under the heading of “Expectations of the Australian community”, the Minister accepted “that the Australian community will generally have a higher level of tolerance of criminal conduct by non-citizens who have lived in the Australian community most of their life”. However, considering the nature of the applicant’s “repeated and very serious offending”, the Minister also found that “the Australian community would expect [the applicant] to no longer have the privilege of holding a visa in Australia” (at [49]). The Minister attributed significant weight to the latter finding (at [50]).
Ratio Decidendi
Legal Principle Established
Addressing the unwarranted assumption error in oral submissions, counsel for the Minister again pointed to the applicant’s responses to the questionnaire. Under the heading, “Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?”, the applicant responded that, “My concerns is that I had serious brain damage. Which is being managed locally by professionals who have delt with me for many years” (sic). That statement was evidence before the Minister that the applicant considered that his medical condition was being managed in Australia. Consequently, the Minister submitted, there was no unwarranted assumption about the adequacy of medical care in Australia.ConsiderationThe applicable legal principles Pursuant to s 501BA(2), the Minister is empowered to set aside the Tribunal’s decision and cancel the applicant’s visa if he is satisfied of two conditions: first (under s 501BA(2)(a)), that the applicant did not pass the character test because of the operation of s 501(6)(a) (substantial criminal record on the basis of s 501(7)(a), (b) or (c)), or s 501(6)(e); and secondly (under s 501BA(2)(b)), that the cancellation was in the national interest. The applicant’s challenge is not to the Minister’s satisfaction of those statutory conditions. Instead, the review application asserts legal unreasonableness by the Minister in making the findings of fact identified in that application in the course of exercising the discretion under s 501BA(2). It is important to be precise about the Minister’s jurisdiction to exercise the discretion under s 501BA(2). The applicant contended that the requisite satisfaction to be reached by the Minister was whether the applicant had capacity to establish himself and maintain basic living standards in New Zealand. This submission is inaccurate. The statement by Gummow J in Eshetu relied on by the applicant concerned the review of a decision-maker’s satisfaction of statutory conditions for the exercise of power. Where a decision-maker’s jurisdiction is conditioned by such statutory criteria, jurisdictional error arises where the decision-maker has not reasonably formed the opinion as to the satisfaction of those statutory criteria: Eshetu at [138]. The applicant’s capacity to establish himself and maintain basic living standards is not a conditional criterion for the exercise of the discretionary power in s 501BA(2). Nonetheless, it may be accepted that the discretion in s 501BA(2) must be exercised reasonably: see Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1; [2017] HCA 33 at [57] per Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ; Palmer [2024] at [101] and [114] per Derrington and Hespe JJ; [154] and [156] per Feutrill J; Minister for Immigration and Border Protection v Eden(2016) 240 FCR 158; [2016] FCAFC 28 at [58] per Allsop CJ, Griffiths and Wigney JJ; Minister for Immigration and Border Protection v Stretton(2016) 237 FCR 1; [2016] FCAFC 11 at [4] per Allsop CJ; [53], [61] and [68] per Griffiths J; [91] per Wigney J; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [43]–[44] per Allsop CJ, Robertson and Mortimer JJ. If the exercise of the discretion itself were legally unreasonable, the decision would be affected by jurisdictional error and, accordingly, invalid. Materiality was not raised by the parties as an issue. It was accepted by the parties during the hearing that the error, if it were established, would likely be material: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; (2024) 98 ALJR 610; [2024] HCA 12 at [2]–[8] per Gageler CJ, Gordon, Edelman, Steward, Gleeson, and Jagot JJ.