Guclukol v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 04 September 2020
• Neutral Citation: [2020] FCAFC 148
• Date: 04 September 2020
• Court: Full Federal Court (Australia)

Federal Court of Australia

Guclukol v Minister for Home Affairs [2020] FCAFC 148

Appeal from:	Guclukol v Minister for Home Affairs [2020] FCA 61
File number:	VID 152 of 2020
Judgment of:	KATZMANN, O'CALLAGHAN AND DERRINGTON JJ
Date of judgment:	4 September 2020
Catchwords:	MIGRATION – application for revocation of cancellation decision – whether Minister failed to take into consideration a relevant factor when determining if he was satisfied there was “another reason” to revoke the cancellation decision – whether Minister required to make findings in relation to representations made – no error found
Legislation:	Acts Interpretation Act 1901 (Cth) s 25D Migration Act 1958 (Cth) ss 91R, 499, 501(3A), 501(6), 501(7)(c), 501(7)(d), 501CA, 501G(1)(e)
Cases cited:	Ali v Minister for Home Affairs [2020] FCAFC 109 BSE17 v Minister for Home Affairs [2018] FCA 1926 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 DQM18 v Minister for Home Affairs [2020] FCAFC 110 EVK18 v Minister for Home Affairs [2020] FCAFC 49 Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 Minister for Home Affairs v Buadromo (2018) 267 FCR 320 Minister for Home Affairs v Omar (2019) 373 ALR 569 Minister for Immigration and Border Protection v DRP17 (2018) 267 FCR 492 Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143 Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296 Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 ; Derrington R, “Migrating Towards a Principled Approach to Reviewing Jurisdictional Facts” (2020) 27 AJ Admin L 70
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	74
Date of hearing:	25 August 2020
Counsel for the Appellant:	Mr A Healer
Solicitor for the Appellant:	Victoria Legal Aid
Counsel for the Respondent:	Mr N Wood
Solicitor for the Respondent:	Sparke Helmore

ORDERS

		VID 152 of 2020
BETWEEN:	YAKUP GUCLUKOL Appellant
AND:	MINISTER FOR HOME AFFAIRS Respondent

order made by:	KATZMANN, O'CALLAGHAN AND DERRINGTON JJ
DATE OF ORDER:	4 September 2020

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. The appellant, Mr Guclukol, arrived in Australia in 1971 as a seven year old and has resided here ever since. He did not obtain Australian nationality and, relevantly, his presence here has been pursuant to a Class BF Transitional (Permanent) Visa granted to him under the Migration Act 1958 (Cth) (the Act). He committed a number of serious offences in the period between 1987 and 1989 and one less serious offence in 1994. He was sentenced to several terms of imprisonment in respect of some of those offences and was incarcerated for more than 11 years. He committed several offences of violence in early 2015 against his former de facto partner and their children and, on 15 October 2015, he was sentenced to a further nine months’ imprisonment.

2. As he was required to do, the Minister cancelled the appellant’s visa under s 501(3A) of the Act (the Cancellation decision) on the basis that the appellant failed the character test in s 501(6). He failed that test because he had a “substantial criminal record” (s 501(6)(a)), having been sentenced to a term of imprisonment of 12 months [or more or to two or more terms of imprisonment where the total of those terms is more than 12 months]: s 501(7)(c) and (d). The appellant responded in writing to an invitation given under s 501CA(3) to make representations as to why the Cancellation decision should be revoked and he advanced a number of grounds as to why there was “another reason” within the meaning of s 501CA(4)(b)(ii) that the revocation should occur. The Minister concluded that he was not satisfied that any such reason existed with the result being that his power to revoke the Cancellation decision was not enlivened.

3. An application to this Court to review the Minister’s decision was dismissed by the primary judge on 7 February 2020. The appellant now appeals to this Court.

The grounds of appeal

4. The grounds of the appeal are relatively confined and, without doing the fully articulated grounds any injustice, they may be briefly described as follows:

1. That the primary judge erred in failing to detect a jurisdictional error in the Minister’s reasons where the Minister had allegedly made findings as to the existence of a social security system in Turkey without any evidential basis or because the finding was irrational or illogical.

2. That the primary judge failed to identify the jurisdictional error that the Minister failed to make a finding that the appellant would “struggle to subsist” in Turkey were he to be returned there, when that issue had been raised by the appellant as “another reason” why the Cancellation decision should be revoked. An alternative argument was that the primary judge wrongly found that the Minister had, in fact, made a finding in relation to this issue.

3. That the primary judge failed to find that the Minister had omitted to consider the appellant’s representations as to the threat to his existence should he return to Turkey and the representations concerning his medical history and conditions insofar as they related to his past offences.

relevant legislation

5. To the extent to which it is relevant, s 501CA provides:

501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(3) As soon as practicable after making the original decision, the Minister must:

(a) give the person, in the way that the Minister considers appropriate in the circumstances:

(i) a written notice that sets out the original decision; and

(ii) particulars of the relevant information; and

(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4) 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

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