Kare Kare v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 16 November 2020
• Neutral Citation: [2020] FCA 1643
• Court: Federal Court
• Date: 16 November 2020

Federal Court of Australia

Kare Kare v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1643

Review of:	TBA 12 March 2020 by Member Arends
File number:	QUD 101 of 2020
Judgment of:	RANGIAH J
Date of judgment:	16 November 2020
Catchwords:	MIGRATION – judicial review of decision of Administrative Appeals Tribunal to affirm decision of Minister to not revoke mandatory visa cancellation under s 501CA(4) of the Migration Act 1958 (Cth) – whether Tribunal failed to consider relevant material – whether Tribunal failed to consider a relevant consideration – whether failure to consider was legally unreasonable – application dismissed
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 43 Migration Act 1958 (Cth) ss 476A, 499, 500, 501 and 501CA
Cases cited:	AAG16 v Minister for Immigration and Border Protection [2019] FCA 1214 AXT19 v Minister for Home Affairs [2020] FCAFC 32 BDN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 354 BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196; [2019] HCA 34 Chen v Minister for Immigration and Border Protection [2017] FCA 46 Craig v South Australia (1995) 184 CLR 163 EVK18 v Minister for Home Affairs [2020] FCAFC 49 GBV18 v Minister for Home Affairs [2020] FCAFC 17 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121 Kamal v Minister for Immigration & Multicultural Affairs [2001] FCA 387 King v Minister for Immigration and Border Protection (2014) 142 ALD 305; [2014] FCA 766 Minister for Home Affairs v Omar (2019) 272 FCR 589 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 NAHI v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Pallas v Minister for Home Affairs [2019] FCAFC 149 SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	80
Date of hearing:	16 June 2020
Solicitor for the Applicant:	Mr J McComber of Sentry Law
Counsel for the First Respondent:	Mr B McGlade
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent did not appear

ORDERS

		QUD 101 of 2020
BETWEEN:	JACOBE TIPENE KARE KARE Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	RANGIAH J
DATE OF ORDER:	16 NOVEMBER 2020

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

RANGIAH J:

1. This is an application for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal (the Tribunal) on 12 March 2020. The Tribunal affirmed the decision of the first respondent (the Minister) to not revoke the cancellation of the applicant’s Class TY (subclass 444) visa.

2. The applicant’s amended originating application seeks the following relief:

1. An order in the nature of certiorari quashing the Second Respondent’s decision.

2. A writ of mandamus be issued directing the Second Respondent to determine the Applicant’s application for review according to law.

3. An order that the First Respondent pay the Applicant’s costs of this application.

3. The amended originating application relies on the following grounds:

1. The decision of the Second Respondent dated 12 March 2020 involved jurisdictional error as the Second Respondent failed to consider a relevant consideration in determining the Applicant’s application for review.

2. In the alternative to Ground 1 above, the Second Respondent’s decision dated 12 March 2020 involved jurisdictional error as the Second Respondent determined the Applicant’s application for review on an incorrect understanding of the relevant law, being the requirements of paragraph 13.1.2(1)(a) of Ministerial Direction 79.

…

4. The decision of the Second Respondent involved jurisdictional error as the Tribunal failed to consider material relevant to its decision not to exercise the discretion to revoke the mandatory cancellation, specifically the Sentencing Schedule dated 14 May 2019 produced under Summons by the Mackay Magistrates Court.

(Particulars omitted.)

Background Facts

4. The applicant is a New Zealand citizen who resided in Australia as the holder of a Class TY (subclass 444) visa from 15 September 2001.

5. On 17 May 2019, the Magistrates Court of Queensland at Mackay convicted the applicant of the offence, “dangerous operation of a vehicle and adversely affected by an intoxicating substance”. He was sentenced to a 12-month term of imprisonment with a parole release date of 16 September 2019.

6. On 5 June 2019, the applicant’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act), as the Minister’s delegate was satisfied that the applicant did not pass the character test because he had a substantial criminal record and was serving a sentence of imprisonment on a full-time basis. The applicant made representations on 4 July 2019 requesting that the Minister revoke the cancellation in accordance with s 501CA(4)(a) of the Act.

7. On 13 December 2019, a delegate of the Minister decided not to exercise the power conferred by s 501CA(4) to revoke the cancellation of the visa.

8. The applicant applied to the Tribunal for review of the delegate’s non-revocation decision on 20 December 2019. The Tribunal had the jurisdiction to review such a decision pursuant to s 500(1)(ba) of the Act.

9. The applicant’s application was heard by the Tribunal on 27 February 2020. The applicant called witnesses and gave oral evidence at that hearing. On 12 March 2020, the Tribunal affirmed the decision of the Minister’s delegate to not revoke the cancellation of the visa.

10. The applicant then applied for review of the Tribunal’s decision pursuant to the power conferred on the Court under...