Guclukol v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: SNADEN J
• Judgment Date: 07 February 2020
• Neutral Citation: [2020] FCA 61
• Court: Federal Court
• Date: 07 February 2020

FEDERAL COURT OF AUSTRALIA

Guclukol v Minister for Home Affairs [2020] FCA 61

Appeal from:	Application for review of a migration decision
File number:	VID 996 of 2018
Judge:	SNADEN J
Date of judgment:	7 February 2020
Catchwords:	MIGRATION – application for review of a migration decision – cancellation of a visa on character grounds – application for revocation of cancellation decision – whether the decision was affected by legal unreasonableness – whether the decision-maker made findings of fact for which there was no evidence – whether the decision-maker failed to understand or address a submission advanced by the applicant – whether the decision-maker failed to take into account consequential and substantial evidence – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 476A, 501, 501CA
Cases cited:	BSE17 v Minister for Home Affairs [2018] FCA 1926 CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155 Minister for Home Affairs v Buadromo (2018) 362 ALR 48 Minister for Home Affairs v Omar [2019] FCAFC 188 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Navoto v Minister for Home Affairs [2019] FCAFC 135 Schmidt v Minister for Immigration and Border Protection (2018) 162 ALD 495 Uelese v Minister for Immigration and Border Protection and Another (2016) 248 FCR 296
Date of hearing:	7 August 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	60
Counsel for the Applicant:	Ms S M Kelly
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the Respondent:	Mr N M Wood
Solicitor for the Respondent:	Sparke Helmore Lawyers

ORDERS

		VID 996 of 2018
BETWEEN:	YAKUP GUCLUKOL Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGE:	SNADEN J
DATE OF ORDER:	7 FEBRUARY 2020

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1. The applicant is of Turkish nationality. He came to Australia in 1971 as a seven-year-old child and has lived here permanently ever since. He and his former de facto partner, who is an Australian citizen, have three children, aged (at the date of these reasons) 21, 19 and 13. Prior to June 2016, he held a class BF transitional (permanent) visa, which was granted to him under the Migration Act 1958 (Cth) (hereafter, the “Act”).

2. By a decision made on 21 June 2016 under s 501(3A) of the Act, the respondent (hereafter, the “Minister”) cancelled the applicant’s visa (hereafter, the “Cancellation Decision”). The catalyst for that Cancellation Decision was the applicant’s criminal history. On 15 October 2015, he was sentenced to nine months’ imprisonment for various violence-related offences that he had committed against his previous de facto partner and their children in March 2015. That offending followed convictions in September 1987 (for intentionally causing serious injury), February 1989 (for dangerous driving, failing to stop and exchange details after a road accident, and intentionally causing injury), April 1989 (for breach of suspended sentence relating to the September 1987 offending), June 1989 (for aggravated rape and intentionally causing serious injury), September 1989 (for false imprisonment and intentionally causing injury) and December 1994 (for drug possession). Periods of incarceration were imposed in respect of the applicant’s September 1987, and June and September 1989 offending. In total, the applicant’s criminal past has seen him serve more than 11 years in prison.

3. In response to an invitation extended to him under s 501CA(3) of the Act, the applicant petitioned the Minister to revoke the Cancellation Decision. He accepted that he did not pass the “character test” for which s 501(6) of the Act provides; but he maintained, nonetheless, that there were other reasons (explored in more detail below) why the Cancellation Decision should be revoked pursuant to s 501CA(4) of the Act.

4. By a decision made on 1 August 2018, the Minister declined to revoke the Cancellation Decision (hereafter, the “Non-Revocation Decision”). Written reasons were supplied in support of that decision, the relevant particulars of which are explored further below.

5. By an application dated 8 August 2018 (and amended with effect from 3 December 2018), the applicant seeks under s 476A of the Act judicial review of—that is to say, prerogative relief directed at—the Non-Revocation Decision. He alleges that the Non-Revocation Decision is the product of jurisdictional error. In so doing, he advances three grounds (other grounds were identified in his amended application but are not pressed), specifically that:

1. the Non-Revocation Decision proceeded upon “consequential and substantial findings of fact” for which the Minister had no evidence, or that were otherwise tainted by irrationality or legal unreasonableness (hereafter, “Ground One”);

2. the Minister failed to understand—and, thereby, failed to address—a submission that the applicant advanced before him as to a reason why the Cancellation Decision ought to have been revoked (hereafter, “Ground Two”); and

3. the Minister failed “…to take into account consequential and substantial evidence” (hereafter, “Ground Three”).

6. The particulars of each ground are explored below. For the reasons that follow, I do not accept that the Non-Revocation Decision was tainted by jurisdictional error in any of the forms that the applicant alleges. The application will, for that reason, be dismissed with costs.

The legislative Scheme

7. Section 501 of the Act stipulates circumstances in which the Minister may—and, in some cases, must—cancel a visa on character grounds. Relevantly, it provides as follows:

501 Refusal or cancellation of visa on character grounds

…

(3A) The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii) paragraph (6)(e) (sexually based offences involving a child); and

(b) the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

…

(6) For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by subsection (7))…

…

(7) For the purposes of the character test, a person has a substantial criminal record if:

…

(c) the person has been sentenced to a term of imprisonment of 12 months or more…

8. Under s 501CA of the Act, a non-citizen whose visa has been cancelled under s 501(3A) of the Act may apply for a revocation of that decision. The provision relevantly provides as follows:

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...