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

• Jurisdiction: Australia Federal only
• Judge: KATZMANN, MORTIMER AND BROMWICH JJ
• Judgment Date: 15 April 2020
• Neutral Citation: [2020] FCAFC 66
• Date: 15 April 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66

Appeal from:	Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2019] FCA 1520
File number:	NSD 1692 of 2019
Judge:	KATZMANN, MORTIMER AND BROMWICH JJ
Date of judgment:	15 April 2020
Catchwords:	MIGRATION – appeal from orders of a judge of the Federal Court of Australia dismissing an application for judicial review – where the respondent Minister cancelled a visa under s 501(3) of the Migration Act 1958 (Cth) –whether primary judge erred in finding that the Minister did not misapprehend that he could not seek further information before making a visa cancellation decision – where the Minister made an admission in submissions that he “proceeded on the basis of the alleged misapprehension” –whether the primary judge erred in holding (by reference to the decision in Burgess v Assistant Minister for Home Affairs (2019) 371 ALR 598) that the reasoning in Ibrahim v Minister for Home Affairs [2019] FCAFC 89 concerning the construction of s 501BA of the Migration Act applies to s 501(3) – held – appeal dismissed – Burgess represents the law and the primary judge did not err in finding the Ibrahim construction of s 501BA applies to s 501(3) – the primary judge did not err in giving greater weight to the Minister’s reasons than to the admission – had the Minister proceeded on the misapprehension it would have been material
Legislation:	Evidence Act 1995 (Cth) s 87(1)(a) Migration Act 1958 (Cth) ss 501(2), 501(3), s 501BA
Cases cited:	Boensch v Pascoe [2019] HCA 49; 94 ALJR 112 Burgess v Assistant Minister for Home Affairs [2019] FCAFC 152; 371 ALR 598 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 Ibrahim v Minister for Home Affairs [2019] FCAFC 89 Lustre Hosiery Ltd v York (1935) 54 CLR 134 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 364 CLR 421 Nguyen v Minister for Home Affairs [2019] FCAFC 128 Port of Newcastle Operations Pty Ltd v Australian Competition Tribunal [2017] FCAFC 124; 253 FCR 115
Date of hearing:	18 February 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	83
Counsel for the Appellant:	Mr J R Young
Solicitor for the Appellant:	Shiba Legal
Counsel for the Respondent:	Mr P Herzfeld with Ms A Hammond
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 1692 of 2019
BETWEEN:	DORI CHAMOUN Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	KATZMANN, MORTIMER AND BROMWICH JJ
DATE OF ORDER:	15 april 2020

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant 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

KATZMANN J:

Background

1. Section 501(3) of the Migration Act 1958 (Cth) gives the Minister the power to cancel a visa if the Minister reasonably suspects that the visa holder does not pass the character test and is satisfied that the cancellation is in the national interest. The circumstances in which a person does not pass the character test are listed in s 501(6). Relevantly, they include that the person has “a substantial criminal record”, as defined in s 501(7). Section 501(5) provides that if the Minister reasonably suspects that the person does not pass the character test and is satisfied that the cancellation is in the national interest, the rules of natural justice and the code of procedure set out in Subdiv AB of Div 3 of Pt 2 of the Act do not apply to a decision made under subs 501(3).

2. The appellant, Dori Chamoun, was the holder of a Class BF Transitional (Permanent) visa before it was cancelled by the Minister (then the Minister for Immigration, Citizenship and Multicultural Affairs). The Minister made that decision because he reasonably suspected that Mr Chamoun did not pass the character test and because he was satisfied that cancellation was in the national interest (“the cancellation decision”). Mr Chamoun did not dispute that he did not pass the character test. Rather, he accepted that he had a “substantial criminal record” within the meaning of s 501(7).

3. One of the matters the Minister took into account in assessing the national interest was a report of the NSW Police Service, which the Minister described in his statement of reasons as “the submission of police that Mr Chamoun is a principal member of a highly organised criminal syndicate involved in importing and supplying large quantities of prohibited drugs to the community”.

4. By an application filed in this Court on 8 July 2019, Mr Chamoun sought, amongst other things, a writ of certiorari to quash the cancellation decision on the ground that it was affected by a number of jurisdictional errors. He also challenged the Minister’s decision that he be transferred from Villawood Detention Centre to a detention facility in Perth.

5. The challenge was unsuccessful on both counts and the primary judge dismissed the application. This is an appeal from that judgment. It is confined to that part of the judgment which relates to the denial of relief with respect to the cancellation decision and turns on a narrow point. It arises out of the receipt into evidence, on the application by counsel for Mr Chamoun, of a sentence of the written submissions filed on behalf of the Minister.

The argument below

6. Before the primary judge, Mr Chamoun relevantly submitted that the Minister had misconstrued s 501(3) as precluding him from affording natural justice. In so doing, Mr Chamoun argued that the Minister had fallen into jurisdictional error. He relied on the judgments of the Full Court in Ibrahim v Minister for Home Affairs [2019] FCAFC 89 and Burgess v Assistant Minister for Home Affairs [2019] FCAFC 152; 371 ALR 598.

7. Ibrahim was concerned with a decision made by the Assistant Minister under s 501BA(2), which entitles the Minister to set aside a decision of a delegate of the Minister or the Administrative Appeals Tribunal to revoke a decision under s 501(3A) to cancel a visa. Section 501BA(3) provides that the rules of natural justice do not apply to certain decisions.

8. In Ibrahim at [51]–[64], in a joint judgment, White, Perry and Charlesworth JJ held that, in forming the state of satisfaction contemplated by s 501BA(2) of the Migration Act, the Assistant Minister was not precluded from according natural justice by inviting the appellant to make submissions or provide further material. As the Assistant Minister proceeded on the basis that he was so precluded, the Court held that he had misunderstood the nature of the power he was exercising and so fell into jurisdictional error.

9. In Burgess, which concerned a decision made under s 501(3), White and Charlesworth JJ at [85] held (Kerr J agreeing at [27]), adopting the reasoning in Ibrahim, that a misunderstanding about the effect of s 501(3) could constitute jurisdictional error. In contrast to Ibrahim, however, the majority held at [88] (Kerr J dissenting on this point) that in fact no such misunderstanding occurred and...