GPO18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 12 July 2019
• Neutral Citation: [2019] FCA 1067
• Court: Federal Court
• Date: 12 July 2019

FEDERAL COURT OF AUSTRALIA

GPO18 v Minister for Home Affairs [2019] FCA 1067

Review of:	Application for judicial review of the AAT decision delivered on 22 November 2018
File number(s):	VID 1656 of 2018
Judge(s):	O'BRYAN J
Date of judgment:	12 July 2019
Catchwords:	MIGRATION – application for judicial review of decision of the Administrative Appeals Tribunal refusing to revoke mandatory cancellation of visa by Minister’s delegate under section 501CA(4) Migration Act 1958 (Cth) – where applicant did not pass character test due to having a “substantial criminal record” under section 501(6)(a) Migration Act 1958 (Cth) – whether there was another reason why mandatory cancellation should be revoked – whether Tribunal erred by taking into account applicant’s “gullibility” in assessing the risk of re-offending – whether Tribunal denied applicant procedural fairness by failing to put the applicant on notice of adverse issue and by failing to consider the applicant’s submissions as to the causes of her offending – application upheld
Legislation:	Migration Act 1958 (Cth) ss 501(3A), 501CA(4) Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA paras 7(1)(b), 8(1), 8(3), 13.1.1, 13.1.2, 13.3
Cases cited:	Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 Minister for Immigration and Border Protection v SZMTA (2019) 163 ALD 38 Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 Navoto v Minister for Home Affairs [2019] FCA 295 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Date of hearing:	1 May 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	95
Counsel for the Applicant:	Mr M Kenneally
Solicitor for the Applicant:	Carina Ford Immigration Lawyers
Counsel for the First Respondent:	Mr M Hosking
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		VID 1656 of 2018
BETWEEN:	GPO18 Applicant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	O'BRYAN J
DATE OF ORDER:	12 July 2019

THE COURT ORDERS THAT:

1. A writ of certiorari issue, directed to the second respondent, quashing the decision of the second respondent dated 22 November 2018.

2. A writ of mandamus issue, remitting the matter to the second respondent and requiring it to determine the matter in accordance with law.

3. The first respondent pay the costs of the applicant.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1. This is an application made under s 476A(1)(b) of the Migration Act 1958 (Cth) (Act) seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made under s 500(1)(ba) of the Act on 22 November 2018.

2. The applicant was born in, and is a citizen of, Thailand. She first came to Australia for a holiday in 2006. In 2007 she returned on a student visa in order to learn English. In 2008 she married an Australian citizen and in 2010 she was granted a Class BS Subclass 801 Partner (Residence) visa.

3. The applicant has been convicted of a number of criminal offences. These include a conviction for cultivating a narcotic plant (cannabis) in a commercial quantity, for which the applicant was sentenced to imprisonment for a period of two years and six months.

4. On 16 January 2017, a delegate of the Minister cancelled the applicant’s visa as required by s 501(3A) of the Act. It is not in dispute that the applicant did not pass the character test in s 501(3A)(a)(i) because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(c) (sentenced to a term of imprisonment of 12 months or more). The applicant was notified of this decision on 16 January 2017, and was invited to make representations about the revocation of the decision to cancel her visa. The applicant made representations in response to that invitation.

5. On 31 August 2018, a delegate of the Minister decided under s 501CA(4) of the Act not to revoke the cancellation of the applicant’s visa. On 3 September 2018, the applicant was notified of the delegate’s decision and provided with a copy of the decision and the attachments thereto.

6. On 12 September 2018, the applicant applied to the Tribunal for review of the delegate’s decision under s 500(1)(ba) of the Act. On 12 and 13 November 2018, the applicant appeared before the Tribunal with the assistance of an interpreter to give evidence and present arguments. On 22 November 2018, the Tribunal affirmed the delegate’s decision. At the request of the applicant, and without opposition from the Minister, the Tribunal made a confidentiality order in relation to the applicant’s identity, prohibiting the publication of the applicant’s name and material tending to identify her. Those orders have been respected in the hearing before me and name of this proceeding uses a pseudonym.

7. On 28 December 2018, the applicant filed an originating application in this Court seeking review of the decision of the Tribunal. Section 476A(1)(b) of the Act gives the Court jurisdiction to review the decision of the Tribunal, and s 476A(2) stipulates that the jurisdiction is the same as the jurisdiction of the High Court under s 75(v) of the Constitution. Consistently with that limitation, the relief sought by the applicant in her originating application is a writ of certiorari quashing the decision of the Tribunal and a writ of mandamus remitting the matter to the Tribunal for...