Uriaere v Minister for Home Affairs - [2018] FCA 2084

FEDERAL COURT OF AUSTRALIA
Uriaere v Minister for Home Affairs [2018] FCA 2084

File number: NSD 456 of 2018

Judge: WIGNEY J

Date of judgment: 21 December 2018

Catchwords:
MIGRATION – judicial review of Minister’s decision under s 501BA(2) Migration Act 1958 (Cth) to set aside a decision made by the Administrative Appeals Tribunal under s 501CA Migration Act 1958 (Cth) – where applicant had a “substantial criminal record” – where applicant’s visa cancelled by delegate of the Minister under the mandatory cancellation provisions – where delegate of the Minister decided not to revoke mandatory cancellation – where Administrative Appeals Tribunal decided to revoke the cancellation of applicant’s visa – where Minister set aside Tribunal’s decision

PRACTICE AND PROCEDURE – application for extension of time to file application for relief under s 476A Migration Act 1958 (Cth) – where Minister did not object to time being extended

ADMINISTRATIVE LAW – judicial review – whether Minister’s decision was legally unreasonable – whether Minister failed to give proper, genuine or realistic consideration to relevant matters – application for judicial review dismissed

Legislation:
Australian Citizenship Act 2007 (Cth), s 12

Constitution, para 75(v)

Judiciary Act 1903 (Cth), s 39B

Migration Act 1958 (Cth), ss 476A, 477A, 499, 500, 501, 501BA, 501CA

Cases cited:
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Belmorgan Property Development Pty Ltd v GPT RE Ltd (2007) 153 LGERA 450; [2007] NSWCA 171

Foley v Padley (1984) 154 CLR 349

Fraser v Minister for Immigration and Border Protection [2014] FCA 1333

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158

Minister for Immigration andBorder Protection v Singh (2014) 231 FCR 437

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173

Date of hearing: 19 July 2018

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 52

Counsel for the Applicant: Ms SB Phillips

Counsel for the Respondent: Ms N Laing

Solicitor for the Respondent: Clayton Utz

ORDERS

NSD 456 of 2018

BETWEEN:
WICHMAN URIAERE

Applicant

AND:
MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:

WIGNEY J

DATE OF ORDER:

21 DECEMBER 2018

THE COURT ORDERS THAT:
1.The time within which the applicant be permitted to file an application pursuant to s 476A of the Migration Act 1958 (Cth) (the Act) be extended pursuant to s 477A of the Act to 22 March 2018.
2.The applicant’s application for an extension of time filed 22 March 2018 be taken to be his substantive application pursuant to s 476A of the Act.
3.The grounds set out in paragraph…

Grounds of appeal

[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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Details

Case: [2018] FCA 2084
Decision Date: 21 December 2018

CaseChat Overview and Summary

In the matter of Uriaere v Minister for Home Affairs, the applicant, Mr Uriaere, sought judicial review of the Minister's decision to set aside a decision made by the Administrative Appeals Tribunal (AAT) to revoke the cancellation of his visa under section 501CA of the Migration Act 1958 (Cth). The Minister had cancelled Mr Uriaere’s visa due to his substantial criminal record, but the AAT later decided to revoke the cancellation. The Minister subsequently set aside the AAT's decision, leading to Mr Uriaere challenging the Minister's decision in court.

The primary legal issues before the court were whether the Minister's decision was legally unreasonable and whether the Minister had failed to give proper, genuine, or realistic consideration to relevant matters in exercising his discretion to set aside the AAT’s decision. The court was required to examine the Minister's Statement of Reasons to determine if it demonstrated a proper exercise of the discretion provided by section 501BA(2) of the Act.

The court held that the Minister's decision was not legally unreasonable. It found that the Minister had given proper, genuine, and realistic consideration to the relevant matters, including the national interest and the best interests of Mr Uriaere's minor children. The Minister had concluded that the risk posed by Mr Uriaere’s potential future criminal conduct outweighed the countervailing considerations. The court accepted that the Minister's reasons were comprehensive and demonstrated a proper exercise of discretion. Consequently, the application for judicial review was dismissed.

In its orders, the court extended the time for Mr Uriaere to file his application for relief under section 476A of the Migration Act, treated his application for an extension as his substantive application, and dismissed the application. Additionally, the court ordered Mr Uriaere to pay the respondent's costs. The time for filing any notice of appeal was also set to commence from a specified date.

Orders

Orders of the court

1. The time within which the applicant be permitted to file an application pursuant to s 476A of the Migration Act 1958 (Cth) (the Act) be extended pursuant to s 477A of the Act to 22 March 2018.

2. The applicant’s application for an extension of time filed 22 March 2018 be taken to be his substantive application pursuant to s 476A of the Act.

3. The grounds set out in paragraph 6 of the written submissions of the applicant filed on 9 July 2018 be taken to be the grounds of the applicant’s application.

4. The application be dismissed.

5. The applicant pay the respondent’s costs of the application for an extension and the substantive application, fixed in the sum of $6,040 pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth).

6. Pursuant to r 1.39 of the Federal Court Rules 2011 (Cth), the time within which the applicant must file and serve any notice of appeal pursuant to rr 36.02 and 36.03 of the Rules is to commence to run from 4 February 2019.

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

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Decision

Reasons for decision

The faint glimmer of hope that Mr Uriaere may have experienced after the Tribunal’s decision was short-lived.The Minister sets aside the Tribunal’s decision The Minister has the power to set aside a decision made by the Tribunal to revoke the cancellation of a visa under s 501CA if satisfied that the cancellation of the visa is in the national interest. That power, which is found in s 501BA(2) of the Act, may only be exercised by the Minister personally. Section 501BA(3) provides that the rules of natural justice do not apply to the making of such a decision. Some may think that rather extraordinary. On 9 January 2018, the Minister set aside the Tribunal’s decision and cancelled Mr Uriaere’s visa. The Minister provided a detailed Statement of Reasons which set out his reasons for his decision. The Reasons recorded that the Minister was satisfied that Mr Uriaere did not pass the character test and that the Minister had concluded that it was in the national interest to cancel Mr Uriaere’s visa. The Minister’s conclusions in relation to the national interest were summarised in the following terms (Reasons at [84]-[86]):Overall, I find that there is an ongoing likelihood that Mr URIAERE will continue to engage in criminal conduct.Given his past serious offending, particularly that involving violence, if Mr URIAERE were to commit further violent offences it would put members of the community at risk of physical or psychological harm. If Mr URIAERE were to commit any other offending it will also impose further costs upon the community associated with law enforcement and the administration of justice.In sum, having regard to the above, including the seriousness and nature of his criminal history and the risk to the Australian community, were he to re-offend, I conclude that those matters are of such seriousness that it is in the national interest to cancel Mr URIAERE's visa. The Reasons also record that the Minister recognised that his decision was discretionary and set out, in considerable detail, the considerations to which he had regard in exercising the discretion in the way he did. The discretionary considerations included: the best interests of minor children; the expectations of the Australian community; the strength, nature and duration of Mr Uriaere’s ties to Australia; and the extent of any “impediments” if Mr Uriaere was removed. The Reasons reveals that the Minister accepted that the best interests of Mr Uriaere’s three minor siblings would be “best served” by not cancelling his visa. Unfortunately for Mr Uriaere, however, the Minister found that he “could not rule out the possibility of further criminal conduct by Mr Uriaere” and that the “Australian community should not tolerate the risk of further harm he poses”: Reasons at [149]. The Minister ultimately reasoned that Mr Uriaere represented an “unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations”: Reasons at [152].This Court’s limited jurisdiction

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	NSD 456 of 2018
Judge:	WIGNEY J
Date of judgment:	21 December 2018
Catchwords:	MIGRATION – judicial review of Minister’s decision under s 501BA(2) Migration Act 1958 (Cth) to set aside a decision made by the Administrative Appeals Tribunal under s 501CA Migration Act 1958 (Cth) – where applicant had a “substantial criminal record” – where applicant’s visa cancelled by delegate of the Minister under the mandatory cancellation provisions – where delegate of the Minister decided not to revoke mandatory cancellation – where Administrative Appeals Tribunal decided to revoke the cancellation of applicant’s visa – where Minister set aside Tribunal’s decision PRACTICE AND PROCEDURE – application for extension of time to file application for relief under s 476A Migration Act 1958 (Cth) – where Minister did not object to time being extended ADMINISTRATIVE LAW – judicial review – whether Minister’s decision was legally unreasonable – whether Minister failed to give proper, genuine or realistic consideration to relevant matters – application for judicial review dismissed
Legislation:	Australian Citizenship Act 2007 (Cth), s 12 Constitution, para 75(v) Judiciary Act 1903 (Cth), s 39B Migration Act 1958 (Cth), ss 476A, 477A, 499, 500, 501, 501BA, 501CA
Cases cited:	Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Belmorgan Property Development Pty Ltd v GPT RE Ltd (2007) 153 LGERA 450; [2007] NSWCA 171 Foley v Padley (1984) 154 CLR 349 Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 Minister for Immigration andBorder Protection v Singh (2014) 231 FCR 437 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Date of hearing:	19 July 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	52
Counsel for the Applicant:	Ms SB Phillips
Counsel for the Respondent:	Ms N Laing
Solicitor for the Respondent:	Clayton Utz

JUDGE:	WIGNEY J
DATE OF ORDER:	21 DECEMBER 2018