Kasupene v Minister for Immigration & Citizenship

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 29 October 2008
• Neutral Citation: [2008] FCA 1609
• Date: 29 October 2008

FEDERAL COURT OF AUSTRALIA

Kasupene v Minister for Immigration & Citizenship [2008] FCA 1609

MIGRATION – applicant in detention – early final hearing – unrepresented party – identification of issues to be resolved – duty of decision-maker to assist – no failure to consider relevant considerations – reasonable opportunity to be heard – review of reasons – findings of fact made and evidence referred to – no need for all findings on all facts

Administrative Appeals Tribunal Act 1975 (Cth), ss 39, 43(2B)

Migration Act 1958 (Cth), s 476A

A v Minister for Immigration & Multicultural Affairs [1999] FCA 227 cited

Abebe v Commonwealth [1999] HCA 14, 197 CLR 510 followed

Aporo v Minister for Immigration & Citizenship [2008] FCA 102 cited

Australian Trade Commission v F & F Asia Pty Ltd (1996) 69 FCR 252 applied

Awan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594, 120 FCR 1 followed

Black v Minister for Immigration & Citizenship [2007] FCAFC 189, 99 ALD 1 applied

Bushell v Repatriation Commission (1992) 175 CLR 408 followed

Cockrell v Minister for Immigration and Citizenship [2007] FCA 1779, 100 ALD 52 cited

Cockrell v Minister for Immigration & Citizenship [2008] FCAFC 160 applied

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 followed

Esber vCommonwealth (1992) 174 CLR 430 cited

Green v Minister for Immigration & Citizenship [2008] FCA 125 cited

Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 applied

Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759, 183 ALR 188 applied

McKeown v Repatriation Commission (1995) 39 ALD 30 applied

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 followed

Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 followed

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323 followed

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126, 128 FCR 553 followed

MZXLB v Minister for Immigration & Citizenship [2007] FCA 1588 cited

MZXMG v Minister for Immigration & Citizenship [2007] FCA 1884 followed

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, 144 FCR 1 followed

NADB v Minister for Immigration and Multicultural Affairs [2002] FCA 200, 189 ALR 293 cited

Neil v Nott (1994) 68 ALJR 509 followed

Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943, 91 ALD 362 cited

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 followed

Re Kasupene and Minister for Immigration & Citizenship [2008] AATA 766 cited

Rogers v Law Coast Mortgages Pty Ltd [2002] FCA 181 applied

Sales v Minister for Immigration & Multicultural Affairs [2006] FCA 1807 applied

Scorgie v Minister for Immigration & Citizenship [2008] FCAFC 101 applied

Secretary, Department of Family and Community Services v Verney [2000] FCA 570, 60 ALD 737 applied

Sullivan v Department of Transport (1970) 20 ALR 323 followed

SZITR v Minister for Immigration and Multicultural Affairs [2006] FCA 1759, 44 AAR 382 cited

SZLMA v Minister for Immigration & Citizenship [2008] FCA 69 followed

Tapel v Minister for Immigration & Citizenship [2008] FCA 857 applied

Transport Accident Commission v Bausch (1998) 4 VR 249 cited

Vu v Minister for Immigration and Citizenship [2008] FCAFC 12, 101 ALD 454 followed

Weti v Minister for Immigration & Citizenship [2007] FCA 1531 considered

DYLAN MURPHY KASUPENE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD 1515 of 2008

FLICK J

29 OCTOBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1515 of 2008

BETWEEN:	DYLAN MURPHY KASUPENE Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	FLICK J
DATE OF ORDER:	29 OCTOBER 2008
WHERE MADE:	SYDNEY

THE ORDERS OF THE COURT ARE:

1. The Application be dismissed.

2. The Applicant is to pay the costs of the First Respondent.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1515 of 2008

BETWEEN:	DYLAN MURPHY KASUPENE Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	FLICK J
DATE:	29 OCTOBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The Applicant in this proceeding is a citizen of New Zealand.

2 He first entered Australia in October 1992 and left within two weeks. He again entered Australia in August 2000. On the latter occasion he was granted a special category visa. Both before and after entering Australia the Applicant committed a number of criminal offences. His visa was cancelled by a delegate of the Minister on 5 June 2008 pursuant to s 501(2) of the Migration Act 1958 (Cth). He appealed that decision to the Administrative Appeals Tribunal and on 29 August 2008 the Tribunal affirmed the decision: Re Kasupene and Minister for Immigration & Citizenship [2008] AATA 766.

3 On 23 September 2008 the Applicant filed a Notice of Appeal in this Court and an Affidavit. The Notice of Appeal — read together with the Affidavit — identified the two grounds of appeal sought to be relied upon as being:

(i) a failure to have regard to a relevant consideration, namely the hardship that the decision would occasion to the Applicant; and

(ii) a failure on the part of the Tribunal to set out its findings on the question as to hardship and a failure to refer to the evidence upon which the findings were based — as was required by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth).

4 An initial difficulty confronting the Applicant was the fact that the decision of the Tribunal is a “privative clause decision” and hence is not susceptible of appeal. The inability to appeal arises by reason of s 476A(1)(b) and (d) of the 1958 Act which relevantly provides as follows:

Limited jurisdiction of the Federal Court

(1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

…

(b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or

…

(d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.

(2) Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.

5 Although the decision of the Tribunal was not susceptible of appeal, originaljurisdiction is conferred on this Court by s 476A(1)(b) and (2) to review the Tribunal’s decision. The jurisdiction conferred is the same as that of the High Court of Australia under s 75(v) of the Constitution. In order to obtain relief in this Court’s original jurisdiction, the Applicant must demonstrate jurisdictional error: Cockrell v Minister for Immigration & Citizenship [2008] FCAFC 160 at [4]. The Minister did not deny that a failure to consider a relevant consideration could amount to jurisdictional error (eg, Aporo v Minister for Immigration & Citizenship [2008] FCA 102; see also: Green v Minister for Immigration & Citizenship [2008] FCA 125 at [21]–[29], 100 ALD 346); nor was any submission advanced that a failure to comply with s 43(2B) of the 1975 Act may not constitute jurisdictional error. The submission which was advanced on behalf of the Minister was that the Tribunal had committed no error, be it jurisdictional or otherwise.

6 Although the constraint imposed by s 476A(1) cannot be disregarded, it did not appear that anything would have been gained had the Applicant been directed to file an application seeking judicial review as opposed to treating the Notice of Appeal as though it were such an application. The Minister did not oppose this course. It is not considered that such a direction would have facilitated the expeditious hearing and resolution of the proceeding. The matter first came before the Court on 13 October 2008. The Applicant was then in detention at Villawood Detention Centre and it was desirable to have his grievances resolved as quickly as was consistent with a proper resolution of the issues raised in his Notice of Appeal. It is the practice of this Court to hear such cases as quickly as possible: eg, Awan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594 at [42], 120 FCR 1 at 11; SZLMA v Minister for Immigration & Citizenship [2008] FCA 69 at [1]. With the co-operation of those appearing for the Respondent Minister, arrangements were made to have the relevant evidence filed and served by 15 October 2008. The matter was listed for final hearing on 17 October 2008.

7 The Applicant appeared before the Court on 17 October 2008 and was then unrepresented. Subsequent to that hearing, further written submissions were filed on behalf of both the Respondent Minister and the Applicant. The most recent written submissions advanced on behalf of the Applicant were received this morning.

8 Construing the Notice of Appeal as an application for judicial review, however, only confronted the Applicant with two further difficulties, namely:

a) whether or not the Tribunal did in fact fail to...