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

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 15 February 2021
• Neutral Citation: [2021] FCAFC 11
• Date: 15 February 2021

Federal Court of Australia

MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11

Appeal from:	MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1161
File number:	WAD 211 of 2020
Judgment of:	ALLSOP CJ, O'CALLAGHAN AND COLVIN JJ
Date of judgment:	15 February 2021
Catchwords:	MIGRATION - appeal from decision dismissing application for judicial review of decision of the Administrative Appeals Tribunal - where Tribunal affirmed decision of delegate of Minister not to revoke mandatory cancellation of visa - where appellant convicted of three counts of sexual offending against step-child and acquitted of fourth count of sexual offending against other step-child - where Tribunal received material relating to fourth count - whether primary judge erred in concluding Tribunal could take contentious material into account - whether primary judge erred in finding Tribunal's decision not vitiated by jurisdictional error due to apprehended bias - whether contentious material irrelevant - whether Tribunal had no jurisdiction to dispute findings by sentencing judge - appeal dismissed
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) ss 7, 10B, 14, 63 Migration Act 1958 (Cth) ss 501, 501CA
Cases cited:	CNY17 v Minister for Immigration and Border Protection [2018] FCAFC 159; (2018) 264 FCR 87 CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 FCR 456 Han v Minister for Home Affairs [2019] FCA 331 Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121 Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 Minister for Home Affairs v Brown [2020] FCAFC 21; (2020) 275 FCR 188 Minister for Immigration and Border Protection v Makasa [2021] HCA 1 Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427 Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 Re JRL; Ex parte CJL (1986) 161 CLR 342 SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 Webb v The Queen (1994) 181 CLR 41
Division:	General Division
Registry:	Western Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	92
Date of hearing:	3 February 2021
Counsel for the Appellant:	Mr HW Glenister
Solicitor for the Appellant:	William Gerard Legal
Counsel for the First Respondent:	Mr PR Macliver
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

Table of Corrections
16 February 2021	At [60] in the final sentence the word 'finding' inserted to correctly read '… any contrary finding to the acquittal …'.
	At [73] in the final sentence the word 'called' amended to 'could not' to correctly read '… and sentence could not be called into …'.

ORDERS

		WAD 211 of 2020
BETWEEN:	MBJY Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	ALLSOP CJ, O'CALLAGHAN AND COLVIN JJ
DATE OF ORDER:	15 FEBRUARY 2021

THE COURT ORDERS THAT:

1. To the extent necessary there be leave to raise the ground specified in the notice of appeal.

2. The appeal be dismissed.

3. The appellant pay the first respondent's costs 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

ALLSOP CJ:

1. I have read the joint reasons to be published of O'Callaghan and Colvin JJ. I agree with the orders proposed by their Honours, and subject to what follows, I agree with their Honours' reasons.

2. I agree that to the extent that it is necessary leave should be given to argue the matters sought to be argued. I refer to and repeat what I said in SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779 at [136] about leave to argue new points on appeal. The ultimate question is the interests of justice, which extend to the potential vindication of a just outcome, to which is relevant the seriousness of the consequences of the decision: cf Iyer v Minister for Immigration [2000] FCA 1788 at [22]. Whilst not intending to identify any error in the way Bromwich J helpfully summarised some of the cases in Han v Minister for Home Affairs [2019] FCA 331 at [10]‑[18] care is always necessary in a discretion of this kind not to over-conceptualise or over-categorise matters, which, in any particular case, may be seen to affect the interest of justice, into categories of consideration to be applied as rules or as a set of rules.

3. The real question going to the substance of the appeal is whether, once it was clear how the Minister was to put the case: that the Tribunal should not go behind the acquittal, the Tribunal could continue with the hearing and whether it was required to cease to hear the matter and refer it to a different member with the offending material excised (assuming, however, that in such renewed hearing the Minister would maintain the same position in respect of the acquittal) because a fair-minded lay observer might think that unless this were done the subconscious effect of such indelible material could never be expunged from the mind. For the reasons given by O'Callaghan and Colvin JJ this cannot be correct. The Tribunal under its constitutive legislation is an independent quasi-judicial body of skill and stature. A fair-minded lay observer would be taken to appreciate such matters. The stature and independence of the Tribunal is a feature of importance in the review of, and public confidence in, Commonwealth decision making: cf Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50] and Minister for Home Affairs v Brown [2020] FCAFC 21; 275 FCR 188 at 199‑200 [32] and [33].

4. If I may also respectfully say, to the extent that one is permitted to examine the reasons of this Tribunal member in this case, they...