Pallas v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: COLLIER J
• Judgment Date: 16 April 2019
• Neutral Citation: [2019] FCA 523
• Date: 16 April 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Pallas v Minister for Home Affairs [2019] FCA 523

File number:	QUD 160 of 2018
Judge:	COLLIER J
Date of judgment:	16 April 2019
Catchwords:	MIGRATION – mandatory cancellation of visa under Migration Act 1958 (Cth) s 501(3A) – where applicant has substantial criminal record – applicant had minor children – decision not to revoke cancellation of visa – whether decision of Minister was unreasonable – whether absence of procedural fairness
Legislation:	Federal Court of Australia Act 1976 (Cth) s 37M Migration Act 1958 (Cth) ss 476A, 501(3A), 501(6), 501(6)(a), 501(7)(c), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii) Federal Court Rules 2011 (Cth) rr 4.12, 4.13 Migration Reform (Transitional Provisions) Regulations (Cth) Convention on the Rights of the Child. Opened for signature 20 November 1989. 1577 UNTS 3 (entered into force 2 September 1990) Art 3
Cases cited:	Minister for Immigration and Border Protection v Mohammed [2019] FCAFC 49 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Date of hearing:	16 August 2018
Registry:	Queensland
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	68
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	Ms S Forder
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice, save as to costs

ORDERS

		QUD 160 of 2018
BETWEEN:	GILLES ROGER PALLAS Applicant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ASSISTANT MINISTER FOR HOME AFFAIRS Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	16 APRIL 2019

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1. Before me is an application filed in the Court’s original jurisdiction pursuant to s 476A of the Migration Act 1958 (Cth) (Act) on 13 March 2018 by the applicant, Mr Pallas. Mr Pallas seeks judicial review of a decision made by the Assistant Minister for Home Affairs (the second respondent) not to revoke an earlier decision to cancel his visa. The Assistant Minister has filed a submitting notice save as to costs in this proceeding, and the application for judicial review is defended by the Minister for Home Affairs (the first respondent). For simplicity I shall refer to the respondents collectively as the Minister.

Background

2. Mr Pallas arrived in Australia with his parents and brothers in 1973 when he was 11 years old and received a permanent entry visa. On 1 September 1994, Mr Pallas was assigned a “Class BF transitional (permanent) visa” (visa) under the Migration Reform (Transitional Provisions) Regulations (Cth), being the substantive visa the subject of this proceeding. Despite not leaving Australia since his arrival some 45 years ago, Mr Pallas has not obtained Australia citizenship and remains a French national.

3. Mr Pallas’ National Police Certificate reveals an extensive criminal history during his adult life in Australia, including offences committed whilst on bail or parole. Though the majority of his infractions comprise offences involving dishonesty, Mr Pallas’ conduct also includes weapons possession, drug and driving offences, serious offences of violence and attempted escape from custody.

4. As a result of his criminal activity, Mr Pallas has been imprisoned on numerous occasions, as summarised by the Minister’s written submissions:

• March 1981 to August 1983;

• March 1998 to May 1998;

• February 1999 to July 2012;

• August 2013 to November 2014; and again in

• November 2014 until around November 2017, when he was transferred to immigration detention.

Mandatory cancellation of Mr Pallas’ visa Decision to cancel visa

5. On 2 February 2017, the Department of Immigration and Border Protection (now the Department of Home Affairs) (Department) wrote to Mr Pallas informing that his visa was cancelled under the provisions of s 501(3A) of the Act (original decision).

6. Section 501(3A) of the Act relevantly provides:

501 Refusal or cancellation of visa on character grounds

Decision of Minister or delegate — natural justice applies

…

(3A) 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) [of s 501 of the Act] (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)

…; and

(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.

7. In the original decision, the Department explained the circumstances surrounding Mr Pallas’ failure to pass the character test (contained in s 501(6) of the Act) and his full-time incarceration:

Failure to pass the character test

Based on the information before the Department, the decision maker (who is a delegate of the Minister) was satisfied that you do not pass the character test on the following ground/grounds:

You have a substantial criminal record within the meaning of s501(6)(a) on the basis of s501(7)(a), (b) or (c) of the Act.

Under s501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 31 May 2016 you were convicted of offences including Receiving [sic] tainted property and received sentences including a term of imprisonment of three years.

The information based on which the decision maker was satisfied that you do not pass the character test is the Transcript of Proceedings of the Queensland Magistrates Court at Innisfail on 31 May 2016.

Imprisonment on a full-time basis

Based on the information available, the decision maker was also satisfied that, at the time of the decision, you were 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. In particular, regard was had to the Integrated Offender Management System, Sentence...