Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 02 August 2022
• Neutral Citation: [2022] FCAFC 125
• Date: 02 August 2022

Federal Court of Australia

Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125

Appeal from:
File number:	SAD 191 of 2021
Judgment of:	PERRY, DERRINGTON AND O'SULLIVAN JJ
Date of judgment:	2 August 2022
Catchwords:	MIGRATION – appeal from Federal Court dismissing application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming delegate’s decision made under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke mandatory visa cancellation under s 501(3A) – where primary judge held the Tribunal had erred in failing to consider whether it was satisfied of “another reason” for revocation for the purposes of s 501CA(4)(b)(ii) – where first respondent’s notice of contention contended that the Tribunal had asked itself the correct question by virtue of applying Direction No 79 – where Tribunal had treated the matter as the exercise of a purely discretionary power to revoke or not revoke the cancellation decision – whether primary judge erred in finding that the Tribunal’s error was not material – where notice of contention dismissed – where Tribunal’s error in failing to address the correct question was material to the outcome because there was a realistic possibility of a different outcome – where Tribunal’s error therefore affected by jurisdictional error – appeal allowed
Legislation:	Migration Act 1958 (Cth) ss 65, 91WA, 499, 501, 501CA Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Cases cited:	Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 Chevron USA Inc v Natural Resources Defense Council Inc 467 US 837 (1984) Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409 Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5) [2019] FCA 2073 LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3356 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187 XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138
Division:
Registry:
National Practice Area:
Number of paragraphs:	171
Date of hearing:	2 March 2022
Solicitor for the Appellant	Mr J McComber of Sentry Law
Counsel for the First Respondent	Mr P H d’Assumpcao
Solicitor for the First Respondent	MinterEllison

ORDERS

		SAD 191 of 2021
BETWEEN:	SALAFAI TAUAPAI AU Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	PERRY, DERRINGTON AND O'SULLIVAN JJ
DATE OF ORDER:	2 AUGUST 2022

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by the Federal Court of Australia on 14 October 2021 be set aside and, in lieu thereof, it be ordered that:

   1. a writ of certiorari issue quashing the decision of the second respondent made on 2 March 2021;

   2. a writ of mandamus issue directing the second respondent to determine the applicant’s application for review according to law within 84 days; and

   3. the first respondent pay the applicant’s costs of and incidental to the application.

3. The first respondent pay the appellant’s costs of and incidental to the appeal, to be assessed in default of agreement in accordance with the Court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

PERRY J:

1. I have read the separate reasons of Justice Derrington in draft. I respectfully agree with his Honour’s reasons for holding that the notice of contention fails. The Administrative Appeals Tribunal (Tribunal) plainly erred in applying s 501CA(4) of the Migration Act 1958 (Cth).

2. The real question is whether the primary judge erred in holding that this error was not material. I agree for the reasons given by Derrington J at [48]–[52] that the error is material and therefore jurisdictional in nature.

3. Finally, argument on the appeal proceeded on the basis that there is no residual discretion once the criteria prescribed by ss 501CA(4)(a) and (b) are met. This construction accords with the weight of authority of this Court (as O’Sullivan J explains at [82]–[87]), although the majority’s reasons in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at [22] indicate that the High Court may take a different view. In any event, I agree with Derrington J at [62] that the result on this appeal would be the same irrespective of which construction of s 501CA(4) is correct and, in those circumstances, would refrain from making any further observations as to the proper construction of the provision.

4. It follows that I agree that the appeal should be allowed and the matter remitted to the Tribunal for determination according to law.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.

Associate:

Dated: 2 August 2022

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

5. Mr Au, who is a New Zealand national, arrived in Australia at the age of 15 in 1999. He has lived here ever since. On 12 May 2020 his visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) on the grounds that he had failed the character test. He sought revocation of that cancellation decision under s 501CA(4). The Minister’s delegate determined that they were not satisfied there was another...