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

• Jurisdiction: Australia Federal only
• Judge: LOGAN J
• Judgment Date: 24 June 2020
• Neutral Citation: [2020] FCA 1000
• Court: Federal Court
• Date: 24 June 2020

FEDERAL COURT OF AUSTRALIA

Kelekci v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1000

Review of:	Kelekci and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 254
File number:	NSD 378 of 2020
Judge:	LOGAN J
Date of judgment:	24 June 2020
Catchwords:	MIGRATION – review of a decision of the Administrative Appeals Tribunal (Tribunal) to affirm the Minister’s delegate’s decision not to revoke the mandatory cancellation of the applicant’s visa – where the Tribunal was obliged to take into account and give effect to ministerial direction no. 79 – whether the Tribunal failed to consider the applicant’s relationship with his partner and the consequences which might flow to that relationship if the applicant was deported – whether the Tribunal thereby failed to discharge its review function according to law
Legislation:	Migration Act 1958 (Cth) ss 499, 501, 501CA
Cases cited:	Anees v Minister for Immigration and Border Protection [2020] FCAFC 28 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Jebb v Repatriation Commission (1988) 80 ALR 329 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Public Service Board (NSW) v Osmond (1986) 159 CLR 656 Singh v Minister for Home Affairs (2019) 267 FCR 200 Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545 Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Date of hearing:	24 June 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	49
Counsel for the Applicant:	Mr J Donnelly
Solicitor for the Applicant:	Tajik Lawyers
Counsel for the First Respondent:	Mr G Johnson
Solicitor for the First Respondent:	MinterEllison
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice, save as to costs

ORDERS

		NSD 378 of 2020
BETWEEN:	DEHA KELEKCI Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	24 JUNE 2020

THE COURT ORDERS THAT:

1. The applicant be granted an extension of time within which to file an originating application for the review of the decision of the second respondent dated 20 February 2020.

2. The extension operate nunc pro tunc on and from 31 March 2020.

3. The applicant be granted leave to amend the originating application in terms of the draft amended originating application annexed to the affidavit of Ms Nasima Tajik filed on 4 June 2020.

4. The need for the filing and service of the originating application, as so amended, be dispensed with. The draft originating application stand as an amended originating application duly filed and served for all purposes.

5. There issue absolute in the first instance a writ of certiorari directed to the second respondent quashing its decision made on 20 February 2020.

6. There issue absolute in the first instance a writ of mandamus directed to the second respondent requiring it to determine the applicant’s application for review according to law.

7. The first respondent pay the applicant’s costs of and incidental to the application including the application for an extension of time, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1. The applicant, Mr Deha Kelekci (Mr Kelekci), is a citizen of the Republic of Turkey. He was born in Istanbul on 7 February 1983. He is therefore presently 37 years of age. Mr Kelekci came to Australia on 26 March 2004 at the age of 21. He entered Australia lawfully pursuant to a Subclass 570 (Student) visa issued under the Migration Act 1958 (Cth) (the Act). On 29 March 2011 he was granted a different visa, namely a Class BS Subclass 801 (Spouse) visa under the Act (spouse visa).

2. On 12 October 2018, Mr Kelekci’s spouse visa was cancelled by a delegate of the Minister administering the Act (Minister) under s 501(3A) of the Act. That cancellation was a sequel to satisfaction in respect of the failure of the applicant to pass the character test and the related sentence of imprisonment. I shall detail a little later in the reasons for judgment something of Mr Kelekci’s criminal history. It has never been disputed by him that there existed a basis for such satisfaction on the strength of which his spouse visa might be cancelled. As the Act permitted, Mr Kelekci made representations on 12 November 2018 seeking the exercise of the discretion found in s 501CA of the Act to revoke that visa cancellation.

3. On 28 November 2019, a delegate of the Minister decided not to revoke the decision to cancel Mr Kelekci’s spouse visa. Mr Kelekci, in turn, exercised his right under the Act to seek a review of that refusal to revoke decision by the Administrative Appeals Tribunal (Tribunal). On 20 February 2020, for reasons given in writing that day, the Tribunal (Mr S. Evans, Member) decided to affirm the Minister’s delegate’s decision not to revoke the cancellation of the spouse visa. It was not until 31 March 2020 that Mr Kelekci sought to file in this Court an originating application invoking the jurisdiction conferred on the Court by the Act judicially to review the Tribunal’s decision.

4. That application was filed outside the prima facie time limit. However, the Court is granted power to extend time. At the time when he filed the originating application, the need for an extension was not apparent to Mr Kelekci. It has though, once he has had the benefit of advice from a solicitor and counsel, become all too apparent. The result is that he has sought an extension of time within which to file the originating application. On 13 May 2020, I made an interlocutory order that the originating application and any related extension of time application be heard today with arguments in respect of any extension of time application being treated as arguments in respect of the substantive application in relation to grounds of review. The hearing today has proceeded accordingly.

5. Because of the present COVID-19 pandemic and related public health apprehensions, it has been necessary to conduct the hearing via audio visual means using Microsoft Teams. That particular mechanism is satisfactory in an emergency such as the present but one would not ordinarily choose to exercise judicial power via that means.

6. The Minister has, having regard to an affidavit which has come to be filed on the applicant’s behalf by his solicitor, Ms Nasima Tajik, adopted the position of not just not opposing but, insofar as permissible, consenting to the granting of an extension of time to the applicant. That, in the circumstances and with respect, is a commendably fair approach for the Minister to take. It is apparent from the affidavit of Ms Tajik, as well as looking at the originating application as filed, that the applicant found himself in the not unusual but nonetheless difficult position of a layman in immigration detention having to come to grips in fairly short order with detailed practices and procedures in respect of seeking judicial...