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

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 14 May 2020
• Neutral Citation: [2020] FCA 646
• Date: 14 May 2020

FEDERAL COURT OF AUSTRALIA

Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646

Review of:	Application for judicial review of the Administrative Appeals Tribunal decision, delivered on 19 November 2019 by Senior Member Griffin
File number:	NSD 2114 of 2019
Judge:	PERRAM J
Date of judgment:	14 May 2020
Catchwords:	MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming delegate’s decision not to revoke cancellation of Class UK Subclass 820 spouse visa – where Applicant has substantial criminal record and serving sentence of imprisonment – where visa mandatorily cancelled under Migration Act 1958 (Cth) s 501(3A) – where immediate family member also victim of Applicant’s crime – whether Tribunal must consider effect of non-revocation on family member in both capacities ; MIGRATION – where Applicant submitted Tribunal failed to apply active intellectual consideration to representations made – whether representations constituted substantial and clearly articulated arguments – whether Tribunal’s failure to consider representations led to jurisdictional error
Legislation:	Migration Act 1958 (Cth) ss 189, 499, 501(3A), 501CA
Cases cited:	BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104 Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 Navoto v Minister for Home Affairs [2019] FCAFC 135 RZSN v Minister for Home Affairs [2019] FCA 1731 Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531
Date of hearing:	28 April 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	44
Counsel for the Applicant:	Mr J Barrington (Pro Bono)
Counsel for the First Respondent:	Ms K Pham
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent did not appear

ORDERS

		NSD 2114 of 2019
BETWEEN:	SAMU BALE Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	14 mAY 2020

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

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

REASONS FOR JUDGMENT

PERRAM J:

1. The Applicant, Mr Bale, is a citizen of Fiji who has lived in Australia since March 1996. He married his wife, who is Australian, in 1999 and he was granted a spouse visa on 19 June 2003. Until the events which are the subject of this proceeding he held a Class UK Subclass 820 Spouse visa. The Administrative Appeals Tribunal (‘the Tribunal’) said that Mr Bale presented ‘as a fit-looking, solid build who said in evidence that he had been a former boxer.’ Commencing in 1998 Mr Bale has accrued an extensive criminal record comprising of 31 convictions for a range of lesser offences including larceny, being in possession of goods reasonably suspected of having been stolen, shoplifting, stalk/intimidate, assault, destruction of property, failing to appear whilst on bail, possession of prohibited drugs and so on. He also has a history of domestic violence against his wife and has been convicted twice of assaulting her and of breaching apprehended violence orders. In addition he has accrued a number of driving and traffic offences. He has frequently been in and out of gaol over the last 20 years and has had many brushes with the law.

2. On 15 April 2017 he was involved in an incident at a shop in which he stole a cigarette lighter and threatened a shop assistant. As a result of this incident he was charged. At this time he had just been remanded on bail on 9 April 2017. On 23 November 2017 he was convicted by a magistrate in the Liverpool Local Court of the offence Stalk/intimidate intend fear physical harm (personal) – T2 and of the offence of larceny (the stealing of the cigarette lighter). At the time of his conviction he was on bond in relation to a number of other offences. The magistrate revoked those bonds and proceeded to confirm the convictions to which they related. The sentencing in relation to those other offences was complex but resulted in him being imprisoned until at least 21 May 2018 (and possibly longer). For the offence of larceny he was sentenced to two months imprisonment commencing on 23 April 2018 and for the offence of stalk/intimidate a period of 12 months also commencing on 23 April 2018, with a non–parole period of 6 months. Consequently, he was eligible for parole on 22 October 2018. However, he was subsequently convicted of two further offences on 14 December 2017 (goods in custody) and was sentenced to a further two months imprisonment commencing on 22 October 2018. In the event, he would not be eligible for parole until 21 December 2018.

3. This meant that he was serving a sentence of imprisonment on 14 August 2018. The significance of that date is that on that day a delegate of the Minister (‘the delegate’) informed Mr Bale that his visa had been mandatorily cancelled due to the operation of s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). This was because two triggering conditions of that provision had been satisfied. The first of these was that he had been sentenced to a term of imprisonment of 12 months or more: s 501(3A)(a)(i) and the second was that as at 14 August 2018 Mr Bale was serving a full-time sentence of imprisonment: s 501(3A)(b). Upon satisfaction of both of those matters the delegate was required by s 501(3A) to cancel Mr Bale’s visa.

4. Section 501CA(4) of the Act then permitted Mr Bale to make representations to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) to have that cancellation revoked. On 21 August 2018 Mr Bale made representations under that provision to revoke the cancellation. At the same time he completed a personal circumstances form. Relevantly under a heading which invited him to describe what impact the cancellation of his visa would have on his wife Mr Bale said:

My wife will be devastated as I am her support, best friend and when I am not in custody I am her carer.

5. Under another heading which invited him to describe the impact of the cancellation on his family he said in relation to community groups that:

The community groups would be devastated as one of their people has left.

6. He expanded upon this further in another section of the form which invited comment on the hardship which the cancellation would cause to the Australian community:

I wouldn’t be able to volunteer in my groups, help community with cleaning projects.

7. On 21 December 2018 Mr Bale was released on parole from Junee Correctional Centre and taken into detention by the Department of Home Affairs (‘the Department’). This was because upon his release he was an alien who did not hold a valid visa and was required, therefore, by s 189 of the Act to be held in immigration detention His parole period was due to expire on 22 April 2019.

8. On 22 December 2018 Mr Bale was interviewed by a Departmental official. During this interview he informed the official that his wife suffered from...