Demir v Minister for Immigration, Citizenship and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 31 July 2023
• Neutral Citation: [2023] FCA 870
• Date: 31 July 2023

Federal Court of Australia

Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870

Review of:	Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 62
File number:	NSD 83 of 2023
Judgment of:	KENNETT J
Date of judgment:	31 July 2023
Catchwords:	MIGRATION – Application for review of decision of Administrative Appeals Tribunal affirming delegate of Minister’s decision not to revoke mandatory visa cancellation under s 501CA(4) of Migration Act 1958 (Cth) – relevance of family violence offending to “primary considerations” in Direction No 90 – whether Tribunal impermissibly “double counted” family violence offending – application dismissed
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 43 Migration Act 1958 (Cth) ss 499, 501, 501CA ; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA (8 March 2021)
Cases cited:	Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514; 65 ALD 667 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; 176 FCR 203 Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 Djokovic Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 Enichem ANIC Srl v Anti-Dumping Authority (1992) 39 FCR 458 Howells v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 327; 139 FCR 580 Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 461 Khan v Minister for Immigration and Ethnic Affairs (unreported, Gummow J, 11 December 1987; noted (1987) 14 ALD 291, 292) Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 Parramatta City Council v Pestell (1972) 128 CLR 305 Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; 176 FCR 153 XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	27
Date of hearing:	4 July 2023
Counsel for the Applicant:	Mr O Jones
Solicitor for the Applicant:	SouthWest Migration and Legal Services
Counsel for the First Respondent:	Mr G Johnson SC with Mr N Swan
Solicitor for the First Respondent:	HWL Ebsworth Lawyers
Counsel for the Second Respondent:	The Second Respondent submitted

ORDERS

		NSD 83 of 2023
BETWEEN:	MEHMET SELCUK DEMIR Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	KENNETT J
DATE OF ORDER:	31 JULY 2023

THE COURT ORDERS THAT:

1. The amended originating application be dismissed.

2. The applicant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNETT J

background

1. The applicant’s five year resident return visa was cancelled by a delegate of the first respondent (the Minister), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act), on 19 January 2022. Section 501(3A) requires a visa to be cancelled if the holder is serving a term of imprisonment and fails the character test (set out in s 501(6)) on specified grounds.

2. When a visa is cancelled under s 501(3A), the Minister is required by s 501CA(3) of the Act to notify the former holder in writing and invite them to make “representations … about revocation of the original decision”. The Minister is empowered by s 501CA(4) to revoke the decision to cancel the visa if the person makes such representations, and:

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

3. The applicant made representations seeking revocation of the cancellation of his visa. On 15 November 2022 a delegate of the Minister decided not to exercise the power of revocation. The applicant applied for review of that decision by the second respondent, the Administrative Appeals Tribunal (the Tribunal). The decision under review in this proceeding is the decision made by the Tribunal, dated 30 January 2023, to affirm the decision of the delegate.

4. It was not in question that the applicant did not pass the character test. The decision of the Tribunal therefore turned on whether it was satisfied that there was “another reason why” the decision to cancel the visa should be revoked.

5. In considering that issue the Tribunal was required by s 499(2A) of the Act to comply with relevant parts of Direction No 90: Visa Refusal and Cancellation under s 501 and Revocation of Mandatory Cancellation of a Visa under s 501CA (the Direction), which had been issued by the Minister under s 499(1). The Direction applied to decisions concerning whether to refuse or cancel a visa on character grounds under ss 501(1) or (2) of the Act and decisions under s 501CA(4).

6. Section 6 of the Direction provided that, in “exercising the discretion” (which can be taken to include making the assessment required by s 501CA(4)(b)(ii)), the decision-maker “must take into account the considerations identified in sections 8 and 9, where relevant to the decision”. Section 8 set out four “primary considerations”, as follows:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the best interests of minor children in Australia;

(4) expectations of the Australian community.

7. Section 9 of the Direction provided that “other considerations must also be taken into account, where relevant”. The other conditions “include (but are not limited to)”:

a) international non-refoulement obligations;

b) extent of impediments if removed;

c) impacts on victims;

d) links to the Australian community, including:

i) strength, nature and duration of ties to Australia;

ii) impact on Australian business interests.

8. Section 7 of the Direction provided that “primary considerations should generally be given greater weight than the other considerations”.

9. Each of the considerations listed above was the subject of some elaboration in the Direction. It is sufficient for present purposes to note the following points.

1. The “protection of the Australian community” called for analysis of the seriousness of the visa holder’s conduct, the level of risk of that conduct being repeated and the harm that would be inflicted if that were to occur.

2. Consideration of the “expectations...