FCFY v Minister for Home Affairs (No 2)

• Jurisdiction: Australia Federal only
• Judge: THAWLEY J
• Judgment Date: 26 November 2019
• Neutral Citation: [2019] FCA 1990
• Date: 26 November 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990

	Appeal from:	Application for judicial review of the AAT decision delivered on 8 November 2018 by Dr L Bygrave
	File number:	NSD 852 of 2019
	Judge:	THAWLEY J
	Date of judgment:	26 November 2019
	Catchwords:	MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – original decision by delegate of Minister not to revoke mandatory visa cancellation under s 501CA(4) of the Migration Act 1958 (Cth) – whether jurisdictional error – whether the Tribunal thought “primary considerations” had to be given greater weight than “other considerations” under Direction 65 – whether Tribunal erred in giving less weight to the applicant’s length of residence because the applicant had not spent time positively contributing to the Australian community – whether Tribunal failed to deal with critical claims raised – whether Tribunal made factual findings without evidence – application allowed
	Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 43 Migration Act 1958 (Cth) ss 476A, 477A, 499, 500, 501, 501CA
	Cases cited:	Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 Collector of Customs v Pozzolanic (1993) 43 FCR 280 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 FCFY v Minister for Home Affairs [2019] FCA 1222 FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555 Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 Graham v Minister for Immigration and Border Protection [2017] HCA 33 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 Minister for Home Affairs v Buadromo (2018) 362 ALR 48 Minister for Home Affairs v HSKJ (2018) 363 ALR 325 Minister for Home Affairs v Omar [2019] FCAFC 188 Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1995) 57 FCR 432 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Plaintiff M161/2010E v Commonwealth (2010) 243 CLR 319 SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 Singh v Minister for Home Affairs [2019] FCAFC 3 Soliman v University of Technology, Sydney (2012) 207 FCR 277 Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 SZTMD v Minister for Immigration and Border Protection (2015) 150 ALD 34 Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112
	Date of hearing:	22 November 2019
	Registry:	New South Wales
	Division:	General Division
	National Practice Area:	Administrative and Constitutional Law and Human Rights
	Category:	Catchwords
	Number of paragraphs:	111
Counsel for the Applicant:		Mr J Donnelly with Mr K Tang
	Solicitor for the Applicant:	Kyu and Young Lawyers
	Counsel for the First Respondent:	Mr T Reilly
	Solicitor for the First Respondent:	Sparke Helmore Lawyers
	Counsel for the Second Respondent:	The second respondent filed a submitting notice save as to costs

ORDERS

		NSD 852 of 2019
BETWEEN:	FCFY Applicant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	THAWLEY J
DATE OF ORDER:	26 NOVEMBER 2019

THE COURT ORDERS THAT:

1. There issue absolute in the first instance a writ of certiorari directed to the second respondent, quashing its decision made on 8 November 2018.

2. There issue absolute in the first instance a writ of mandamus directed to the second respondent, requiring it to determine the applicant’s application for review according to law.

3. The first respondent pay the applicant’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

THAWLEY J:

1. The applicant is a British citizen who migrated from the United Kingdom when he was about a year old, arriving in Australia in 1972. He has lived in Australia for 47 years and has never returned to the United Kingdom. He has close ties to Australia, including a partner, three siblings, four step-siblings, three children and three grandchildren. His extended family, comprising of eight aunts and uncles, cousins, nieces and nephews all also reside in Australia. The applicant has no known family in the United Kingdom.

2. The applicant also has a criminal history including convictions for more than 100 separate offences between 1987 and 2017. He has been sentenced to terms of imprisonment in respect of 38 of those offences, some of which were served concurrently. The applicant’s history of offending includes violence, dishonesty and driving offences. Between 2000 and 2017, the applicant spent more than five years and ten months in prison.

3. On 21 February 2017, the applicant was convicted and sentenced to imprisonment with respect to six offences. He was sentenced to an aggregate period of 12 months’ imprisonment in respect of two counts of ‘dishonestly obtain property by deception’. He was also concurrently sentenced to three...