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

• Jurisdiction: Australia Federal only
• Judgment Date: 16 October 2020
• Neutral Citation: [2020] FCAFC 176
• Date: 16 October 2020
• Court: Full Federal Court (Australia)

Federal Court of Australia

NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176

Review of:	Application for judicial review: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1631
File number:	NSD 743 of 2020
Judgment of:	PERRAM, DERRINGTON AND STEWART JJ
Date of judgment:	16 October 2020
Catchwords:	MIGRATION – application for revocation of cancellation decision – applicant’s visa cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) – delegate of Minister refused to revoke cancellation decision under s 501CA – Administrative Appeals Tribunal affirmed delegate’s decision – applicant alleged unspecified errors in AAT’s decision – applicant alleged documents before AAT were fraudulent or falsified – applicant alleged he was denied procedural fairness by reason of being self-represented and detained in immigration detention – lack of particulars and written submissions – no evidence to support allegations – application dismissed ; MIGRATION – applicant seeking review of cancellation decision and review of decision to refuse bridging visa – no jurisdiction to grant relief
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 37 Migration Act 1958 (Cth) ss 476A, 500, 501, 501CA, 501G
Cases cited:	Chetcuti v Minister for Immigration and Border Protection (2019) 270 FCR 33 Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 FYBR v Minister for Home Affairs (2019) 272 FCR 454 HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121 Katelaris v Director of Public Prosecutions (NSW) [2018] NSWCCA 193 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v MZYLE (2011) 123 ALD 548 Omar v Minister for Home Affairs [2019] FCA 279 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	59
Date of hearing:	30 September 2020
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Ms J Davidson
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 743 of 2020
BETWEEN:	NWWJ Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

order made by:	PERRAM, DERRINGTON AND STEWART JJ
DATE OF ORDER:	16 October 2020

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. This was an application for review of a decision of the Administrative Appeals Tribunal (AAT) affirming a decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), not to revoke the cancellation of the applicant’s Partner (Residence) (Class BS) visa (visa). The applicant’s application was not prepared by a lawyer. The relief he sought, although not framed in precisely these terms, was:

1. The AAT’s decision be quashed;

2. The delegate of the Minister’s decision to cancel his visa be reviewed and revoked; and

3. The decision to refuse his bridging visa application be reviewed.

2. In the circumstances, this Court only has jurisdiction to consider the first matter.

Background

3. The applicant is a citizen of Vietnam who entered Australia with his wife and daughter on 1 July 2009 pursuant to the permission granted to him by a partner visa. He was granted permanent residency in 2015.

4. On 11 November 2017, an apprehended domestic violence order (DVO) was taken out against him for the protection of his wife and daughter consequent upon an incident which occurred in the family home. The applicant was alleged to have poured boiling soup down his wife’s back, causing her serious burns. He was arrested and charged over the incident.

5. On 26 November 2018, he was convicted of assault occasioning actual bodily harm and sentenced to 20 months’ imprisonment. The sentencing judge found that the victim’s injuries were very significant and entirely consistent with a person pouring boiling liquid over her back, and that there was no other way the injury could have occurred. Throughout the proceedings the applicant maintained his innocence and repeatedly alleged that his conviction was procured as a result of unlawful acts, including the modification of the record of his interview with the police upon arrest. The sentencing judge noted that he demonstrated no remorse or contrition and that he had declined legal representation.

6. The applicant unsuccessfully appealed that decision to the District Court of New South Wales, who dismissed the appeal on 26 April 2019. He also attempted to commence appeals in the New South Wales Court of Appeal and the High Court of Australia, and made various complaints to the NSW Judicial Commission concerning the conduct of the magistrate and District Court Judge, as well as various other judicial officers.

7. On 13 February 2019, a delegate of the Minister cancelled the applicant’s visa as mandated by s 501(3A) of the Migration Act 1958 (Cth) (the Act) (the cancellation decision). This was on the basis that he did not pass the character test because he had a substantial criminal record, having been sentenced to a term of imprisonment of more than 12 months: ss 501(6)(a) and 501(7)(c) of the Act. On 19 February 2019, he made representations seeking revocation of that cancellation decision. In summary, they were:

1. That he maintained he was innocent of the offence for which he had been convicted and sentenced, and indicated he had appealed his conviction to the District Court of NSW;

2. That he would face harm if returned to Vietnam because he was a human rights activist who criticised the Vietnamese government for their violation of human rights;

3. ...