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

• Jurisdiction: Australia Federal only
• Judgment Date: 01 December 2020
• Neutral Citation: [2020] FCA 1726
• Date: 01 December 2020
• Court: Federal Court

Federal Court of Australia

Law v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1726

Review from:	Law v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1469
File number:	NSD 790 of 2020
Judgment of:	STEWART J
Date of judgment:	1 December 2020
Catchwords:	MIGRATION – visa cancellation on character grounds – application for review of decision of Administrative Appeals Tribunal affirming decision not to revoke visa cancellation pursuant to s 501CA(4) of the Migration Act 1958 (Cth) – where Tribunal made error of law as to whether jurisdictional fact satisfied – whether error was material – application allowed
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) ss 19A, 43 Federal Court of Australia Act 1976 (Cth) s 23 Migration Act 1958 (Cth) ss 198(2A)(c), 476A, 501, 501CA Migration Regulations 1994 (Cth) reg 2.52
Cases cited:	Ali v Minister for Home Affairs [2020] FCAFC 109; 380 ALR 393 BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Civil Aviation Safety Authority v Allan [2001] FCA 1064; 114 FCR 14 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; 24 ALR 307 Commonwealth of Australia v Horsfall [2010] FCA 443; 185 FCR 66 DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; 382 ALR 246 Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 FYBR v Minister for Home Affairs [2019] FCA 500 FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 338 Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43; 236 CLR 120 Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; 250 FCR 309 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 83; 128 FCR 507 Qantas Airways Ltd v Lustig [2015] FCA 253; 228 FCR 148 Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167 Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313 Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 Bennett H and Broe GA, “The civil standard of proof and the ‘test’ in Briginshaw: Is there a neurobiological basis to being ‘comfortably satisfied’?” (2012) 86 ALJ 258 Bennett H and Broe GA, “The neurobiology of judicial decision-making: Indigenous Australians, native title and the Australian High Court” (2009) 20 PLR 112
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	70
Date of hearing:	24 November 2020
Counsel for the Applicant:	O Jones
Solicitor for the Applicant:	Nikjoo Lawyers
Counsel for the First Respondent:	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 790 of 2020
BETWEEN:	KWOK LAM LAW Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	STEWART J
DATE OF ORDER:	1 December 2020

THE COURT ORDERS THAT:

1. The decision of the second respondent dated 25 May 2020 is set aside.

2. The matter is remitted to the second respondent for determination in accordance with law.

3. The first respondent pay the applicant’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1. The applicant, Kwok Lam Law, is from Hong Kong. He met his Vietnamese wife in December 1995. They married in Hong Kong in 1999. She acquired Australian citizenship in 2004. He has resided in Australia since October 2009. The couple have four children all of whom were born in Australia. At the relevant time, which, as will be seen, was in March 2020, the children were aged 8, 16, 18 and 23.

2. On 26 June 2013, the applicant was granted a Partner (Residence) (Class BS) (subclass 801) visa.

3. The applicant’s first criminal conviction in Australia was in 2010. It was for “destroy or damage property” and he was sentenced to what is referred to as a “section 10 bond”. He then had a number of convictions in 2016 and 2017 and, finally, in 2019. These were all driving offences and, related to those offences, resisting police in the execution of their duties.

4. On 9 January 2019, the applicant was convicted in the Bankstown Local Court of “police pursuit – not stop – drive dangerously”, “resist officer in execution of duty”, “refuse or fail to submit to breath analysis” and “drive motor during disqualification period”. The conviction for the police pursuit resulted in a sentence of 15 months imprisonment with an 8 month non-parole period.

5. On 18 March 2019, the applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) by a delegate of the Minister on the basis that the applicant did not pass the character test because he has a “substantial criminal record” as referred to in
   s 501(7)(c) of the Act as he had been sentenced to a term of imprisonment of more than 12 months, and was serving a sentence of full-time imprisonment.

6. In circumstances which will be set out more fully in due course, the applicant sought the revocation of the cancellation of his visa under s 501CA(4) of the Act. On 2 March 2020, a delegate of the Minister accepted that the request for a revocation had been properly made (i.e. that s 501CA(4)(a) was satisfied) but found that the applicant did not pass the character test and there was no other reason why the original decision should be revoked (i.e. that s 501CA(4)(b) was not satisfied). The original cancellation decision was therefore affirmed.

7. The applicant then applied to the Administrative Appeals Tribunal for a merits review of the delegate’s decision. On 25 May 2020, a member of the Tribunal found that the applicant’s request for a revocation had not been made within the required time period (i.e. that s 501CA(4)(a) was not satisfied) and that as a consequence neither the delegate nor the Tribunal had the power to revoke the earlier delegate’s decision to cancel the applicant’s visa. The Tribunal set aside the delegate’s decision not to revoke the cancellation and “remitted” the matter to the Minister “with a direction that the original decision of 18 March 2019 not be set...