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

• Jurisdiction: Australia Federal only
• Judgment Date: 13 June 2023
• Neutral Citation: [2023] FCA 587
• Date: 13 June 2023
• Court: Federal Court

Federal Court of Australia

Nuuamoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 587

File number(s):	VID 630 of 2021
Judgment of:	ROFE J
Date of judgment:	13 June 2023
Catchwords:	MIGRATION – application for judicial review – where visa cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) – where Tribunal upheld a decision of the delegate not to revoke the cancellation – whether Tribunal committed jurisdictional error by failing to comply with Ministerial Direction No. 90 – whether Tribunal failed to afford applicant procedural fairness – whether applicant was serving a sentence of full-time imprisonment at the time of cancellation – whether cancellation was valid
Legislation:	Migration Act 1958 (Cth) ss 477A, 499, 501, 501CA Federal Court Rules 2011 r 8.21 Corrections Act 1986 (Vic) s 6B Interpretation of Legislation Act 1984 (Vic) s 44 Ministerial Direction 90 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Cth) Ministerial Direction 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Cth) Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
Cases cited:	Abebe v Commonwealth [1999] HCA 14 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Australian Securities and Investments Commission v Cassimatis (No 6) [2016] FCA 622 Bettancourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196 Cockrell v Minister for Immigration and Citizenship [2008] FCAFC 160 Commissioner for the Australian Capital Territory Revenue v Alphaone (1994) 49 FCR 576 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 EXT20 v Minister for Home Affairs [2022] FCAFC 72 Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309 Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184 Ketjan v Assistant Minister for Immigration and Border Protection (2019) 273 FCR 105 Minister for Home Affairs v Buadromo [2018] FCAFC 151 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 Minister for Immigration and Citizenship v Li [2013] HCA 18 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration v Eshetu [1999] HCA 21 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403 NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050 PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 Rokobatini v Minister for Immigration & Multicultural Affairs [1999] FCA 1238 Snedden v Minister of Justice (2014) 230 FCR 82 Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 SZSMR v Minister for Immigration and Border Protection [2015] FCA 655 Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619 XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	131
Date of hearing:	17 May 2022
Counsel for the Applicant:	Ms F Batten (Pro Bono)
Counsel for the First Respondent:	Mr C Hibbard
Solicitor for the First Respondent:	HWL Ebsworth

ORDERS

		VID630 of 2021
BETWEEN:	MAFOE CHANEL NUUAMOA Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	ROFE J
DATE OF ORDER:	13 June 2023

THE COURT DECLARES THAT:

1. The decision of the delegate of the first respondent dated 21 October 2020 to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa is affected by jurisdictional error and invalid.

THE COURT ORDERS THAT:

1. The application for an extension of time to file to apply for judicial review of a decision of the Administrative Appeals Tribunal is allowed.

2. The Applicant be granted leave to file and rely on the amended draft application submitted to the Court on 26 April 2022.

3. The Administrative Appeals Tribunal be joined to these proceedings as the Second Respondent.

4. The application is allowed.

5. A writ of certiorari be issued to the second respondent quashing the decision of 13 September 2021.

6. The First Respondent pay the costs of the Applicant, to be assessed in absence of agreement.

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

REASONS FOR JUDGMENT

ROFE J:

1. This is an application for an extension of time to apply for judicial review of a decision of the Administrative Appeals Tribunal, which affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, not to revoke the mandatory cancellation of the applicant’s visa. The applicant contends, in summary, that when making that decision, the Tribunal:

• failed to carry out to the statutory task required by s 501CA(4) of the Migration ...