EZA20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 11 December 2020
• Neutral Citation: [2020] FCA 1775
• Date: 11 December 2020

Federal Court of Australia

EZA20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1775

File number:	NSD 1026 of 2020
Judgment of:	STEWART J
Date of judgment:	11 December 2020
Catchwords:	MIGRATION – cancellation of visa under s 501(3A) of the Migration Act 1958 (Cth) – application for review of a decision of the Minister for Home Affairs declining to revoke the cancellation under s 501CA(4) – whether the Minister acted irrationally or illogically in various respects in finding that there was a risk that the applicant would reoffend – whether the Minister fell into jurisdictional error by making a finding in respect of the applicant’s entitlement in Ireland to social security based on no evidence – whether critical finding – whether finding based on specialist or accumulated knowledge – application allowed
Legislation:	Migration Act 1958 (Cth) ss 501(3A), 501CA
Cases cited:	Ali v Minister for Home Affairs [2020] FCAFC 109; 380 ALR 393 Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corp (1985) 1 NSWLR 561 Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85; 203 FCR 389 Australian Postal Corporation v D’Rozario [2014] FCAFC 89; 222 FCR 303 Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 338 Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; 236 CLR 120 Hempenstall v Minister for Home Affairs [2020] FCA 686 Hempenstall v Minister for Home Affairs [2020] FCAFC 216 McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 Minister for Immigration and Border Protection v Egan [2018] FCAFC 169; 261 FCR 451 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 246 CLR 421 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601 Pennie v Minister for Home Affairs [2019] FCAFC 129 Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162 SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 213; 77 ALD 402 Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277 SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97; 187 FCR 109 Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 144 Webb v Minister for Home Affairs [2020] FCA 831 ZGWQ v Minister for Home Affairs [2019] FCA 1096
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	80
Date of hearing:	1 December 2020
Counsel for the Applicant:	J Barrington with A McCowan (pro bono)
Counsel for the Respondent:	P Knowles
Solicitor for the Respondent:	Mills Oakley

ORDERS

		NSD 1026 of 2020
BETWEEN:	EZA20 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

order made by:	STEWART J
DATE OF ORDER:	11 December 2020

THE COURT ORDERS THAT:

1. The decision of the Minister for Home Affairs dated 4 August 2020 not to revoke the mandatory cancellation of the applicant’s visa is quashed.

2. A writ of mandamus is directed to the respondent requiring the respondent to determine whether to revoke the mandatory cancellation of the applicant’s visa according to law.

3. The respondent pay the applicant’s costs of the application.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1. The applicant seeks judicial review of a decision of the Minister for Home Affairs made on 4 August 2020. On that date, acting pursuant to s 501CA(4) of the Migration Act 1958 (Cth), the Minister declined to revoke an earlier decision of a delegate of the Minister (made pursuant to s 501(3A) of the Act) to cancel the applicant’s Class BB Subclass 155 Five Year Resident Return visa.

2. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was cited as the respondent to the application. The reason for this was not canvassed or explained. Nor was any issue taken with it. On that basis the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs is assumed to have accepted responsibility for the decision of the Minister of Home Affairs that is the subject of judicial review.

3. The applicant was assigned a pseudonym in order to protect the identity of his daughter against whom he committed sexual offences when she was a minor.

Background

4. The applicant was born in 1951 in Ireland. He is an Irish citizen. He arrived in Australia in 1971, aged 19 years. That means that he is presently 69 years of age and he has lived in Australia for 50 years. He said in his representations to the Minister to revoke the cancellation of his visa that he had intended to apply for Australian citizenship but never got around to it.

5. The applicant married his wife in 1998. His daughter, the victim of his offending, was born a few years later.

6. The applicant’s offending occurred between 2008 and 2013. He has no other criminal history.

7. The applicant was sentenced in the District Court of New South Wales in August 2018 after pleading guilty to a single charge of persistent sexual abuse of a child – an offence which carries a maximum penalty of 25 years imprisonment. He pleaded guilty and was sentenced on the basis of five “incidents” of sexual abuse of his daughter, noting that each “incident” involved many separate occasions of sexual conduct over differing periods of time. At the time of the offending, the applicant’s daughter was aged between 6 and 10 years.

8. The applicant was sentenced to an overall sentence of six years imprisonment with a non-parole period of three years and six months. His appeal against sentence was subsequently dismissed.

9. In December 2019, the applicant was advised that a delegate of the Minister had cancelled his visa pursuant to s 501(3A) of the Act on the basis that he had a substantial criminal record.

10. The applicant was invited to make representations to the Minister for consideration for revocation of the cancellation decision. The applicant made representations in January 2020.

11. On 4 August 2020, the Minister decided that he was not satisfied that the applicant passed the character test, and that he was not satisfied that there was another reason why the original decision should be revoked.

The statutory scheme

12. Section 501CA of the Act is relevantly in the following terms:

1. This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving...