Assistant Minister for Immigration and Border Protection v Splendido

• Jurisdiction: Australia Federal only
• Judgment Date: 16 August 2019
• Neutral Citation: [2019] FCAFC 132
• Date: 16 August 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132

Appeal from:	Splendido v Assistant Minister for Immigration and Border Protection (No 2) [2018] FCA 1158
File number:	VID 1060 of 2018
Judges:	MORTIMER, MOSHINSKY AND WHEELAHAN JJ
Date of judgment:	16 August 2019
Catchwords:	MIGRATION – mandatory cancellation of visa on character grounds under s 501(3A) of the Migration Act 1958 (Cth) – where representations made seeking revocation of the cancellation decision – where Assistant Minister decided not to revoke the cancellation decision – where Assistant Minister found that there existed a likelihood that the respondent would re-offend and, accordingly, that he represented an unacceptable risk of harm to the Australian community – where primary judge found that there was no evidence to support these findings – whether primary judge erred in so finding
Legislation:	Constitution, s 75(v) Administrative Appeals Tribunal Act 1975 (Cth), s 44 Judiciary Act 1903 (Cth), s 39B Migration Act 1958 (Cth), ss 189, 196, 474, 499, 501, 501CA Factories and Shops Act 1960 (Qld) Serious Sex Offenders Monitoring Act 2005 (Vic), s 11
Cases cited:	Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 Australian Postal Corporation v D’Rozario [2014] FCAFC 89; 222 FCR 303 Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; 148 FCR 446 BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78; 252 FCR 82 Christine George & Ors on behalf of the Gurambilbarra People v State of Queensland [2008] FCA 1518 Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; 240 FCR 29 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 Hannes v DPP (No 2) [2006] NSWCCA 373; 205 FLR 217 Hughes v The Queen [2017] HCA 20; 344 ALR 187 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 260 FCR 523 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 M v M (1988) 166 CLR 69 Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 Nguyen v Minister for Immigration and Border Protection [2019] FCAFC 128 Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620; 261 FCR 385 Picard v Minister for Immigration and Border Protection [2015] FCA 1430 Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; 296 ALR 307 RJE v Secretary to the Department of Justice [2008] VSCA 265; 21 VR 526 Sabourne v State of Western Australia [2010] WASCA 242 Sheen v Fields (1984) 51 ALR 345 SZNKV v Minister for Immigration and Citizenship [2010] FCA 56; 118 ALD 232 Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; 225 FCR 424 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees Union (1979) 27 ALR 367
Date of hearing:	4 February 2019
Registry:
Division:
National Practice Area:
Category:	Catchwords
Number of paragraphs:	132
Counsel for the Appellant:	Mr C Horan QC with Ms C Symons
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondent:	Mr N Poynder
Solicitor for the Respondent:	Erskine Rodan & Associates

ORDERS

		VID 1060 of 2018
BETWEEN:	ASSISTANT MINISTER FOR IMMIGRATION AND BORDER PROTECTION Appellant
AND:	CARMELO SPLENDIDO Respondent

JUDGES:	MORTIMER, MOSHINSKY AND WHEELAHAN JJ
DATE OF ORDER:	16 AUGUST 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of and incidental to the appeal, to be fixed by way of a lump sum.

3. On or before 30 August 2019 the parties are to file any proposed minute of order as to an agreed lump sum for the respondent’s costs.

4. In the absence of a proposed minute of consent order being filed pursuant to paragraph 3, the matter of an appropriate lump sum for the respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

Introduction

1. The respondent, Mr Splendido, was born in Italy and immigrated to Australia in 1967 at the age of two years. He has lived in Australia since then. In 2015, he held a BF Transitional (Permanent) visa. On 2 December 2015, Mr Splendido’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) on the ground that he had a substantial criminal record and was serving a full-time sentence of imprisonment. Mr Splendido made representations seeking revocation of the cancellation decision pursuant to s 501CA of the Migration Act. On 28 February 2017, the appellant (the Assistant Minister) decided not to revoke the cancellation decision (the non-revocation decision).

2. Mr Splendido commenced a proceeding in this Court seeking judicial review of the non-revocation decision. That application was successful. The primary judge set aside the non-revocation decision, essentially on the basis that there was no evidence for certain findings made by the Assistant Minister, namely findings that there existed a likelihood that Mr Splendido would re-offend and, accordingly, that he represented an unacceptable risk of harm to the Australian community.

3. The Assistant Minister appeals from the judgment of the primary judge. For the reasons I set out below, the appeal should be dismissed.

The legislative provisions

4. Section 501(3A) of the Migration Act provides:

(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

(ii) paragraph (6)(e) (sexually based offences involving a child); and

(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

5. Section 501CA of the Migration Act provides:

(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.

(2) For the purposes of this section, relevant information is...