Degning v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 30 April 2019
• Neutral Citation: [2019] FCAFC 67
• Date: 30 April 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Degning v Minister for Home Affairs [2019] FCAFC 67

Appeal from:	Degning v Minister for Home Affairs [2018] FCA 1152
File number:	NSD 1591 of 2018
Judges:	ALLSOP CJ, COLLIER AND THAWLEY JJ
Date of judgment:	30 April 2019
Catchwords:	MIGRATION – whether s 501(2) of the Migration Act 1958 (Cth) authorised the Minister to cancel the appellant’s visa – whether the appellant had an accrued right to remain indefinitely in Australia – whether the appellant’s failure to declare criminal convictions on incoming passenger cards was indicative of a disregard for the law – whether the appellant was obliged to disclose spent convictions – whether the appellant was denied procedural fairness – whether the appellant was put on notice of the relevance of the incoming passenger cards to the Minister’s consideration as to his criminal history
Legislation:	Acts Interpretation Amendment Act 2011 (Cth), ss 7, 8 Crimes Act 1914 (Cth), ss 85ZL, 85ZM, 85ZV, 85ZW, 85ZZH Intelligence and Security (Consequential Amendments) Act 1986 (Cth), ss 21, 22 Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth), s 5 Migration Act 1958 (Cth), ss 5, 6, 12, 13, 14, 55, 56, 57, 97, 102, 105, 107, 109, 116, 165, 166, 172, 180A, 234, 501, 501HA, 504, 506 Migration Amendment Act 1983 (Cth), ss 10, 11 Migration Laws Amendment Act 1993 (Cth), s 5 Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth), Sch 1 Migration Legislation Amendment Act (No 1) 2008 (Cth), Sch 4 Migration Legislation Amendment Act 1989 (Cth), ss 2, 35 Migration Legislation Amendment Act 1994 (Cth), ss 57, 58, 83, Sch 1 Migration Reform Act 1992 (Cth), s 2 Migration Reform (Transitional Provisions) Regulations 1994 (Cth), s 4 Migration Regulations 1994 (Cth), regs 3.01, 3.02, Sch 4
Cases cited:	ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1 Bainbridge v Minister for Immigration and Citizenship [2010] FCAFC 2; 181 FCR 569 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 Ex parte Walsh and Johnson; Re Yates [1925] HCA 53; 37 CLR 36 Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415; 97 FCR 387 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1 Kenny v Minister for Immigration, Local Government and Ethnic Affairs (1993) 42 FCR 330 Kraljevich v Lake View and Star Ltd [1945] HCA 29; 70 CLR 647 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 La Macchia v Minister for Primary Industry (1986) 72 ALR 23 Maxwell v Murphy [1957] HCA 7; 96 CLR 261 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252 Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45, 165 CLR 178 Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 R v Forbes; Ex parte Kwok Kwan Lee [1971] HCA 14; 124 CLR 168 R v MacFarlane; Ex parte O’Flanagan and O’Kelly [1923] HCA 39; 32 CLR 518 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Re Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 56; 216 CLR 212 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 Sales v Minister for Immigration and Citizenship [2008] FCAFC 132; 171 FCR 56 Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; 218 CLR 28 Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212 The Queen v Director General of Social Welfare (Vic); Ex parte Henry [1975] HCA 62; 133 CLR 369
Date of hearing:	25 February 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	155
Counsel for the Appellant:	Mr T Brennan
Solicitor for the Appellant:	SBA Lawyers
Counsel for the Respondent:	Mr P Herzfeld
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 1591 of 2018
BETWEEN:	DAVID DEGNING Appellant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGES:	ALLSOP CJ, COLLIER AND THAWLEY JJ
DATE OF ORDER:	30 April 2019

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Orders 3 and 4 of the Court made on 7 August 2018 be set aside, and in lieu thereof it be ordered that

(a) the decision of the respondent of 9 January 2018 cancelling the applicant’s visa be set aside; and

(b) the respondent pay the applicant’s costs of the application.

3. The respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1 I have had the advantage of reading the reasons to be published by Thawley J.

2 I agree with his Honour’s reasons in relation to ground 1 of the notice of appeal. Prior to the coming into effect on 2 April 1984 of the Migration Amendment Act 1983 (Cth) (the 1983 Amendment Act), the statutory powers to deport people were based on either s 51(xxvii) “immigration and emigration” or s 51(xix) “naturalization and aliens”. One of the important distinctions between the two powers was that a person lost the status of an immigrant (and so ceased to be within the reach of any statutory power directed to immigrants and based on s 51(xxvii)) if that person had become absorbed into the Australian community as a member thereof: R v MacFarlane; Ex parte O’Flanagan and O’Kelly [1923] HCA 39; 32 CLR 518 at 583 (Starke J, contra Isaacs J at 555, with whom Rich J agreed at 578 that “once an immigrant always an immigrant”); Ex parte Walsh and Johnson; Re Yates [1925] HCA 53; 37 CLR 36 at 61–62 (Knox CJ, agreeing with Starke J in R v MacFarlane) and 138 (Starke J); R v Forbes; Ex parte Kwok Kwan Lee [1971] HCA 14; 124 CLR 168 at 172 (Barwick CJ, with whom McTiernan, Windeyer, Owen and Gibbs JJ agreed); and The Queen v Director General of Social Welfare (Vic); Ex parte Henry [1975] HCA 62; 133 CLR 369 at 372 (Barwick CJ), 373–374 (Gibbs J), 379–380 (Mason J, with whom McTiernan J agreed), and 383–384 (Jacobs J, with whom McTiernan J also agreed). See also in the Full Court of this Court Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186.

3 Upon the reconfiguration of the Migration Act 1958 (Cth) by the 1983 Amendment Act as based on the distinction between citizen and non-citizen (based on the aliens power) Mr Degning became liable...