Navoto v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 19 August 2019
• Neutral Citation: [2019] FCAFC 135
• Date: 19 August 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Navoto v Minister for Home Affairs [2019] FCAFC 135

Appeal from:	Navoto v Minister for Home Affairs [2019] FCA 295
File number(s):	VID 288 of 2019
Judge(s):	MIDDLETON, MOSHINSKY AND ANDERSON JJ
Date of judgment:	19 August 2019
Catchwords:	MIGRATION – appeal from decision of Federal Court of Australia dismissing application for judicial review of exercise of power by Assistant Minister for Home Affairs under s 501CA(4) of the Migration Act 1958 (Cth) – where Assistant Minister decided not to revoke cancellation of appellant’s visa – whether Assistant Minister’s finding that appropriate treatment and medication for the appellant’s depression and anxiety was likely to be available in Fiji was supported by evidence – even if that finding was not supported by evidence, whether that was a jurisdictional error – whether the Assistant Minister gave appropriate consideration to the appellant’s lack of ties or support in Fiji, including the threat of homelessness ; Held: appeal dismissed – even if Assistant Minister’s finding was not supported by evidence, this did not amount to a jurisdictional error – Assistant Minister gave appropriate consideration to the appellant’s lack of ties or support in Fiji
Legislation:	Migration Act 1958 (Cth) ss 501(3A), 501CA(3)(b), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
Cases cited:	Anaki v Minister for Immigration and Border Protection [2018] FCA 77 Australian Postal Corporation v D’Rozario [2014] FCAFC 89; 222 FCR 303 Buchwald v Minister for Immigration and Border Protection [2016] FCA 101; 242 FCR 65 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 Collector of Customs v Pozzolanic [1993] FCA 322; 43 FCR 280 Dekker v Medical Board of Australia [2014] WASCA 216 DFW18 v Minister for Home Affairs [2019] FCA 599 Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 Hay v Minister for Home Affairs [2018] FCAFC 149 Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; 49 AAR 77 Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; 112 ALD 1 McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 Minister for Home Affairs v Buadromo [2018] FCAFC 151; 362 ALR 48 Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 362 ALR 9 Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 66; 185 CLR 259 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966 Navoto v Minister for Home Affairs [2019] FCA 295 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162; 162 ALD 495 Sowa v Minister for Home Affairs [2019] FCAFC 111 Tran v Minister for Immigration and Border Protection [2019] FCAFC 126 Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13
Date of hearing:	8 August 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	113
Counsel for the Appellant:	Mr J Barrington
Solicitor for the Appellant:	Victoria Legal Aid
Counsel for the First Respondent:	Mr M Hosking
Solicitor for the First Respondents:	Sparke Helmore

ORDERS

		VID 288 of 2019
BETWEEN:	LEMEKI NAVOTO Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES:	MIDDLETON, MOSHINSKY AND ANDERSON JJ
DATE OF ORDER:	19 august 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction and summary

1. The appellant, a citizen of Fiji, appeals from the first instance decision of this Court in Navoto v Minister for Home Affairs [2019] FCA 295. The primary judge dismissed an application for judicial review of a decision of the Assistant Minister for Home Affairs (Assistant Minister) under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the mandatory cancellation of the appellant’s Class BC Subclass 100 (Spouse) visa.

2. The appellant contended that the primary judge erred in reaching various conclusions. The impugned conclusions of the primary judge were that: (a) the Assistant Minister’s finding that appropriate treatment and medication for the appellant’s depression and anxiety was likely to be available in Fiji was supported by evidence; (b) even if that finding was not supported by evidence, it did not constitute a jurisdictional error by the Assistant Minister; and (c) the Assistant Minister had not failed to give appropriate consideration to the appellant’s lack of ties or support in Fiji.

3. Our view, in summary, is that, even if the Assistant Minister’s relevant finding—that appropriate treatment and medication for the appellant’s depression and anxiety was likely to be available in Fiji—was unsupported by evidence, a matter which is unnecessary for us to decide, the failure to support that finding with evidence did not amount to a jurisdictional error by the Assistant Minister.

4. Moreover, having regard to the manner in which representations were made by, or on behalf of, the appellant, and the reasons of the Assistant Minister as a whole, our view is that the Assistant Minister did not fail to give appropriate consideration to the lack of the appellant’s ties or support in Fiji, including the threat of homelessness upon his removal to Fiji.

5. For these reasons, as are further explained below, the primary judge was correct to dismiss the appellant’s application for judicial review of the Assistant Minister’s decision. The appellant’s appeal must accordingly be dismissed.

Background

6. The appellant is a citizen of Fiji. He arrived in Australia in August 2000. He has three children from a relationship with a former partner, who are Australian born and hold Australian citizenship. The appellant has an Australian citizen...