BFM21 v Minister for Immigration, Citizenship and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 12 May 2023
• Neutral Citation: [2023] FCA 467
• Date: 12 May 2023
• Court: Federal Court

Federal Court of Australia

BFM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 467

File number:	QUD 146 of 2021
Judgment of:	FARRELL J
Date of judgment:	12 May 2023
Catchwords:	MIGRATION – mandatory visa cancellation – application for review of personal decision of Minister not to revoke mandatory visa cancellation – whether failure to consider mandatory relevant consideration – whether decision involved illogical or irrational reasoning or legal unreasonableness – application dismissed
Legislation:	Acts Interpetation Act 1901 (Cth) s 25D Migration Act 1958 (Cth) ss 501, 501CA, 501(3A), 501G(1) Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) Criminal Code Act 1899 (Qld) Sch 1 ss 23, 24, 27, 28
Cases cited:	AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 AXT19 v Minister for Home Affairs [2020] FCAFC 32 AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; (2016) 243 FCR 451 Appellant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs 2003] FCAFC 184; (2003) 236 FCR 593 Brown v Minister for Immigration and Border Protection [2015] FCAFC 141; (2015) 235 FCR 88 BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78; (2017) 252 FCR 82 BRZ17 v Minister for Immigration and Border Protection [2019] FCA 677 BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 Coker v Minister for Immigration and Border Protection [2017] FCA 929; (2017) 160 ALD 588 Guclukol v Minister for Home Affairs [2020] FCAFC 148; (2020) 279 FCR 611 Kamal v Minister for Immigration & Multicultural Affairs [2001] FCA 387 Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2019) 267 FCR 320 Minister for Home Affairs v Ogawa [2019] FCAFC 98; (2019) 269 FCR 536 Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 Minister for Immigration and Multicultural Affairs v Yusuf [2000] HCA 30; (2001) 206 CLR 323 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178 Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; (2015) 230 FCR 367 Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81 MZZGE v Minister for Immigration and Border Protection [2019] FCAFC 72 Pallas v Minister for Home Affairs [2019] FCAFC 149 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 R v Falconer [1990] HCA 49; (1990) 171 CLR 30 R v Milloy [1993] 1 Qd R 298 SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 207 FCR 277 Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531
	Peter Ridgway, “Sleepwalking – Insanity or Automatism?” (1996) 3(1) Murdoch University Electronic Journal of Law 4
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	104
Date of hearing:	7 September 2021
Counsel for the Applicant:	Mr M Black
Solicitor for the Applicant:	Fisher Dore Lawyers
Counsel for the Respondent:	Mr B McGlade
Solicitor for the Respondent:	Sparke Helmore

ORDERS

		QUD 146 of 2021
BETWEEN:	BFM21 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS Respondent

order made by:	FARRELL J
DATE OF ORDER:	12 May 2023

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2. The application for judicial review is dismissed.

3. The applicant must pay the respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J:

Introduction

1. The applicant (to whom I will also refer as BFM21) is a citizen of New Zealand. In 2008, BFM21 came to live in Australia with his first wife (also a citizen of New Zealand), their two biological children and his step-daughter. In December 2013, he married an Australian citizen who has two adult children. His two biological children, one of whom is an adult, now live in New Zealand. He has lived permanently in Australia since 2008.

2. On 27 February 2020, BFM21 was convicted in the District Court of Queensland of “indecent treatment of a child under 12 years lineal descendant/guardian/carer”. The child was his biological daughter. He pleaded not guilty and has consistently said that he has no memory of any such conduct. After a four day trial, he was found guilty by a jury. He was sentenced to a term of two years’ imprisonment (suspended after he had served 12 months on the condition that he does not reoffend for two years). Relevantly, to the grounds of judicial review which BFM21 seeks to establish, the sentencing Judge remarked (sentencing Judge’s remark):

Given the offence you have been convicted of, you will be placed on the sex offenders’ register, which is very likely to limit interaction with children in the future and effectively eliminate any opportunities to reoffend.

3. BFM21 held a Class TY Subclass 444 Special Category (Temporary) visa until it was cancelled on 30 April 2020 by a delegate of the Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the cancellation decision). There is no dispute that s 501(3A) required the delegate to cancel the visa. The delegate was satisfied that BFM21 did not pass the “character test” due to the operation of s 501(6)(a) of the Migration Act (substantial criminal record) on the basis of s 501(7)(c) (sentence to a term of imprisonment of 12 months or more) and because BFM21 was then serving a...