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

• Jurisdiction: Australia Federal only
• Judge: BANKS-SMITH J
• Judgment Date: 05 August 2020
• Neutral Citation: [2020] FCA 1120
• Court: Federal Court
• Date: 05 August 2020

FEDERAL COURT OF AUSTRALIA

Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120

Appeal from:	Leota v Minister for Home Affairs [2019] FCCA 1798
File number:	QUD 408 of 2019
Judge:	BANKS-SMITH J
Date of judgment:	5 August 2020
Catchwords:	MIGRATION - appeal from decision of the Federal Circuit Court - appellant a citizen of New Zealand - where appellant's temporary special visa cancelled under s 116(1)(e)(i) of the Migration Act 1958 (Cth) - where appellant a convicted dealer in dangerous drugs - where Administrative Appeals Tribunal satisfied appellant 'is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community' - extent to which Tribunal obliged to identify particular risk and object of risk - whether Tribunal properly understood statutory task - whether jurisdictional error by Tribunal disclosed ; PRACTICE AND PROCEDURE - application to rely on new grounds of appeal - whether expedient in the interests of justice - where appellant not represented before the Federal Circuit Court - where proposed ground of appeal raises question of statutory construction of s 116(1)(e) of the Migration Act 1958 (Cth) - where proposed ground of appeal is arguable - leave granted in part
Legislation:	Migration Act 1958 (Cth) ss 48, 116, 117, 189, 196, 198, 338, 348, 501 Migration Regulations 1994 (Cth) Schedule 2, cl 444.511
Cases cited:	AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 Ali v Minister for Home Affairs [2020] FCAFC 109 AWV18 v Minister for Home Affairs (No 3) [2020] FCA 365 BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 Borbil v The State of Western Australia [2007] WASCA 24 BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 CHZ19 v Minister for Home Affairs [2019] FCA 914 COT15 v Minister for Immigration and Border Protection [2015] FCAFC 190; (2015) 236 FCR 148 EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 Gong v Minister for Immigration and Border Protection [2016] FCCA 561 Han v Minister for Home Affairs [2019] FCA 331 Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; (2017) 258 FCR 1 Minister for Home Affairs v Omar [2019] FCAFC 188 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 Navoto v Minister for Home Affairs [2019] FCAFC 135 NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 Newall v Minister for Immigration and Multicultural Affairs [1999] FCA 1624 O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 The Queen v Roe [2017] NTCCA 7; (2017) NTLR 187 Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80 Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225 VAUX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588
Date of hearing:	30 July 2020
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	85
Counsel for the Appellant:	Mr H Watkins (Pro Bono)
Counsel for the First Respondent:	Ms S J Oliver
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		QUD 408 of 2019
BETWEEN:	ROBIN LEOTA Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	BANKS-SMITH J
DATE OF ORDER:	5 AUGUST 2020

THE COURT ORDERS THAT:

1. Leave be granted to file and rely on the amended notice of appeal but limited to ground 1.

2. Appeal dismissed.

3. The appellant pay the first respondent's costs of the appeal 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

BANKS-SMITH J:

Background

1. Mr Leota is a citizen of New Zealand who has been living in Australia since January 2015. At that time he was granted a special category (subclass 444) temporary visa, which permitted him to remain in Australia while a New Zealand citizen: cl 444.511 of Schedule 2 of the Migration Regulations 1994 (Cth).

2. In 2016 Mr Leota was charged with and convicted of a number of crimes. Most significantly, he was charged with and convicted of 38 charges relating to the trafficking, supply and possession of dangerous drugs (methylamphetamine). Convictions were also recorded for a number of other offences including possession of drug utensils, possession of a knife in a public place, possession of property suspected to be the proceeds of crime and the assault or obstruction of a police officer.

3. Mr Leota was sentenced in the Supreme Court of Queensland to two terms of imprisonment on the various drug charges, being for 5 years and 12 months respectively to be served concurrently, and was given credit for time served. The sentence was suspended and Mr Leota was released on 10 April 2018, having served 434 days in prison.

4. Relevantly, s 116(1) of the Migration Act 1958 (Cth) grants to the Minister the power to cancel a visa if satisfied as to any one of a number of grounds. Subject to certain exceptions that are not presently relevant, holders of permanent visas are not exposed to the risk of cancellation under s 116(1): s 117(2) of the Migration Act. By contrast, holders of a temporary visa such as a subclass 444 visa remain exposed to such risk.

5. On 11 April 2018 a delegate of the Minister gave notice to Mr Leota stating that he was satisfied that there appeared to be grounds for cancelling Mr Leota's visa under s 116(1)(e)(i) of the Migration Act. That provision is to the effect that the Minister may cancel a visa if he or she is satisfied that the presence...