Tuala v Minister for Home Affairs

FEDERAL COURT OF AUSTRALIA

Tuala v Minister for Home Affairs [2019] FCA 345

File number:

NSD 1149 of 2018

Judge:

FLICK J

Date of judgment:

15 March 2019

Catchwords:

PRACTICE AND PROCEDURE – application for an extension of time – lack of merit in proposed grounds of review – extension of time refused

MIGRATION – whether weight given to risk of re-offending  prevails over best interests of the children

ADMINISTRATIVE LAW – need for path of reasoning to be transparent – reasoning exposes weight given to competing interests – decision not unreasonable   

Legislation:

Migration Act1958 (Cth) ss 477A, 501, 501CA

Cases cited:

BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78, (2017) 252 FCR 82

Folau v Minister for Immigration and Border Protection [2017] FCAFC 214, (2017) 256 FCR 455

Khan v Minister for Immigration & Ethnic Affairs [1987] FCA 713

Maere v Minister for Home Affairs [2018] FCA 1694

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

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009) 83 ALJR 1123

Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274, (2001) 106 FCR 426

Moana v Minister for Immigration and Border Protection [2015] FCAFC 54, (2015) 230 FCR 367

NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, (2014) 220 FCR 1

Swift v SAS Trustee Corporation [2010] NSWCA 182, (2010) 6 ASTLR 339

Tewao v Minister for Immigration and Citizenship [2012] FCAFC 39, (2012) 126 ALD 185

Date of hearing:

18 December 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

29

Counsel for the Applicant:

Mr L D Robison

Solicitor for the Applicant:

Gardner Ekes Lawyers

Counsel for the Respondent:

Mr G Johnson

Solicitor for the Respondent:

Mills Oakley

ORDERS

NSD 1149 of 2018

BETWEEN:

ALVIN TUALA

Applicant

AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:	FLICK J
DATE OF ORDER:	15 MARCH 2019

THE COURT ORDERS THAT:

1.The Application for an Extension of Time filed on 24 October 2018 is refused.

2.The proceeding is dismissed.

3.The Applicant is to pay the costs of the Respondent, either as assessed or agreed.

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

REASONS FOR JUDGMENT

FLICK J:

1. The Applicant in the present proceeding, Mr Alvin Tuala, is a citizen of New Zealand who arrived in Australia in July 2000 at the age of 23 years.  He was granted a Special Category (class TY) (subclass 444) visa.

2. In November 2013 he was convicted by Judge Robison in the New South Wales District Court on three counts of discharging a firearm with intent to cause grievous bodily harm.  He was sentenced to a term of eight years imprisonment.

3. In January 2016 his visa was cancelled pursuant to s 501(3A) of the Migration Act1958 (Cth). A delegate of…