Flores v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: YATES J
• Judgment Date: 05 July 2019
• Neutral Citation: [2019] FCA 1043
• Date: 05 July 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Flores v Minister for Home Affairs [2019] FCA 1043

Review of:	Application for judicial review of Flores and Minister for Home Affairs (Migration) [2018] AATA 1264
File number:	NSD 1231 of 2018
Judge:	YATES J
Date of judgment:	5 July 2019
Catchwords:	MIGRATION – judicial review of decision not to revoke the cancellation of a visa – failure of character test
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth), s 43(2) Federal Court Rules 2011, rr 4.12, 4.19 Migration Act 1958 (Cth), ss 476A, 477A(1), 477A(2), 499(1), 501(3A), 501(6)(a), 501CA(4)
Date of hearing:	26 November 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	67
Counsel for the Applicant:	Dr J Lucy
Counsel for the First Respondent:	Mr J Kay Hoyle
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The second respondent filed a submitting notice

ORDERS

		NSD 1231 of 2018
BETWEEN:	LUTHER CASTOR FLORES Applicant
AND:	MINISTER FOR HOME AFFAIRS First Respondent
	ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	YATES J
DATE OF ORDER:	5 JULY 2019

THE COURT ORDERS THAT:

1. A writ of certiorari issue quashing the decision of the second respondent, made on 11 May 2018, not to revoke the cancellation of the applicant’s Class BB, Subclass 155 (Five Year Return) visa (the visa) (the decision).

2. The first respondent, his officers, delegates or agents be restrained from acting upon or giving effect to the decision.

3. A writ of mandamus issue directing the second respondent to re-determine, according to law, the applicant’s application to review the decision of the delegate of the first respondent, made on 19 February 2018, not to revoke the cancellation of the visa.

4. The first respondent pay the applicant’s costs, as taxed or agreed, such costs to be paid directly to the applicant’s counsel, as Pro Bono lawyer, pursuant to r 4.19 of the Federal Court Rules 2011.

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

REASONS FOR JUDGMENT

YATES J:

Introduction

1. Pursuant to s 476A of the Migration Act 1958 (Cth) (the Act), the applicant seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), made on 11 May 2018. The Tribunal’s decision affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs (the Minister), made on 19 February 2018 under s 501CA(4) of the Act, not to revoke the cancellation of the applicant’s Class BB, Subclass 155 (Five Year Resident Return) visa.

2. The application for judicial review was not filed within the time prescribed by s 477A(1) of the Act, but the Minister does not object to time being extended under s 477A(2) thereof. The length of the delay is about three weeks. The reason why the application was not filed on time is explained in an affidavit made by the applicant on 21 June 2018. Essentially, the applicant encountered difficulties in accessing electronic communications with his then lawyer whilst on Christmas Island, where he was detained. I am satisfied that it is in the interests of the administration of justice that an order extending time be made.

Background

3. The applicant is a national of the Philippines, born in 1971. He arrived in Australia in 1985, aged 14, with his younger sister on a tourist visa. He remained in Australia after his visa expired. He married in 1991 and had a daughter in 1992. He was deported to the Philippines shortly thereafter. While in the Philippines, the applicant started to use crystal methamphetamine (“ice”).

4. The applicant was granted a temporary partner visa on 29 December 1999 and returned to Australia. He and his wife had a second child, a boy, in July 2001, after which event the applicant and his wife separated. He then formed a relationship with another woman, with whom he subsequently had two daughters. Following the breakdown of that relationship, he started taking drugs again in the period 2004 to 2005.

5. Between 2004 and 2017, the applicant committed a number of offences, including possessing a prohibited drug, having goods in personal custody suspected of being stolen, and dishonestly obtaining property by deception. On 1 March 2017, he was convicted of a number of offences in the District Court of New South Wales. For these offences, the applicant was sentenced to a total of 16 months’ imprisonment.

6. On 23 June 2017, the delegate cancelled the applicant’s visa under s 501(3A) of the Act, on the basis that the applicant did not pass the character test within the meaning of s 501(6)(a) of the Act (substantial criminal record). This cancellation was required by the Act. The applicant was invited to make representations to the delegate about revoking this decision, and did so in accordance with the invitation. As I have recorded, on 19 February 2018 the delegate made a decision not to revoke the original decision.

7. On 27 February 2018, the applicant applied to the Tribunal to review this decision. He made submissions and provided evidence to the Tribunal. He also relied on the submissions he had made to the delegate when seeking revocation.

8. The application was heard on 11 April 2018 and, as I have recorded, the Tribunal affirmed the decision (not to revoke the original decision) on 11 May 2018.

Statutory framework Statutory provisions

9. With respect to a decision made under s 501(3A) of the Act, s 501CA(4) provides:

The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; 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.

10. It is accepted that the applicant does not pass the character test and that the only basis on which the original decision could be revoked was that there is “another reason” within the meaning of that provision. Plainly, s 501CA(4) invokes a statutory discretion.

11. Section 499(1) empowers the Minister to make written directions which must be followed by a person or body having functions or powers under the Act in the performance of those functions or the exercise of those powers. In the present matter Direction No. 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 65) is important.

12. As a decision maker, the Tribunal was required to comply with this direction when considering whether there is “another reason” why the original decision to cancel the applicant’s visa should be revoked.

Direction 65

13. Part C of Direction 65 identifies the considerations that are relevant to a former...