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

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 17 February 2023
• Neutral Citation: [2023] FCAFC 12
• Date: 17 February 2023

Federal Court of Australia

Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 12

Appeal from:
File number:	ACD 25 of 2022
Judgment of:	CHARLESWORTH, COLVIN AND HALLEY JJ
Date of judgment:	17 February 2023
Catchwords:	MIGRATION - appeal from dismissal of orders dismissing application for judicial review of a migration decision – visa cancelled on character grounds – Administrative Appeals Tribunal affirming a decision not to revoke the cancellation – application of the standard of satisfaction discussed in Briginshaw v Briginshaw (1938) 60 CLR 336 to administrative decision-making – whether failure to comply would constitute legal unreasonableness – whether failure to comply would otherwise constitute jurisdictional error.
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 43 Evidence Act 1995 (Cth) s 140 Migration Act 1958 (Cth) ss 13, 14, 198, 200, 474, 499, 500, 501, 501CA Marriage Act 1928 (Vic) s 80
Cases cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Briginshaw v Briginshaw (1938) 60 CLR 336 Coulton v Holcombe (1986) 162 CLR 1 Craig v South Australia (1995) 184 CLR 163 Han v Minister for Home Affairs [2019] FCA 331 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390 Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 610 Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1506 Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1224 MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 152 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 O’Brien v Komesaroff (1982) 150 CLR 310 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 Raibevu v Minister for Home Affairs [2020] FCAFC 35 Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779 Tarrant v Australian Securities and Investments Commission (2015) 317 ALR 328 TCL Airconditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588
Division:
Registry:
National Practice Area:
Number of paragraphs:	110
Date of hearing:	25 November 2022
Counsel for the Appellant:	N Rochow KC and M Scanlon
Solicitor for the Appellant:	Cifuentes Lawyers
Counsel for the Respondents:	K Hooper
Solicitor for the Respondents:	Clayton Utz

ORDERS

		ACD 25 of 2022
BETWEEN:	TOMASI MAILAU Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	CHARLESWORTH, COLVIN AND HALLEY JJ
DATE OF ORDER:	17 February 2023

THE COURT ORDERS THAT:

1. The appellant has leave to advance the ground as argued limited to the claim of legal unreasonableness.

2. The appeal is dismissed.

3. On or before 3 March 2023 the parties are to file and serve written submissions not exceeding 5 pages on the question of costs.

4. The question of costs be determined on the papers.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1. The appellant, Mr Tomasi Mailau, is a citizen of Tonga. He first arrived in Australia in 1981 as a six year old. He has spent most of his life here, recently as the holder of a Class BB (subclass 155) Resident Return visa issued to him under the Migration Act 1958 (Cth).

2. Whilst in Australia, Mr Mailau has committed several criminal offences. As a consequence of that offending and the sentences imposed, he has a substantial criminal record within the meaning of s 501(7)(c) of the Act and he cannot pass the “character test” prescribed in s 501(6).

3. On 18 December 2018, a delegate of the then-named Minister for Home Affairs cancelled Mr Mailau’s visa under s 501(3A) of the Act (cancellation decision). Section 501(3A) relevantly provides:

The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

…

(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

4. In response to an invitation given under s 501CA(3)(b) of the Act, Mr Mailau made representations to the Minister about the revocation of the cancellation decision. Section 501CA(4) relevantly provides:

The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

5. On 13 February 2020, a second delegate of the Minister refused to revoke the cancellation decision under s 501CA(4) (non-revocation decision).

6. The non-revocation decision has been reviewed and affirmed twice by the Administrative Appeals Tribunal in the exercise of its powers under s 500(ba) of the Act.

7. The Tribunal first affirmed the non-revocation decision on 7 May 2020: Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1506 (AAT1). On 29 July 2020, this Court made orders (by consent) quashing the decision of AAT1 and remitting Mr Mailau’s review application to the Tribunal to be determined according to law.

8. On 14 April 2021, the Tribunal again affirmed the non-revocation decision: Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1224 (AAT2). Mr Mailau’s application for judicial review of the decision in...