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

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 22 April 2021
• Neutral Citation: [2021] FCA 403
• Date: 22 April 2021

Federal Court of Australia

Perera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 403

File number:	WAD 279 of 2020
Judgment of:	O'BRYAN J
Date of judgment:	22 April 2021
Catchwords:	MIGRATION – application for judicial review of decision of the Minister refusing to revoke mandatory cancellation of visa under s 501CA(4) of the Migration Act 1958 (Cth) – where applicant did not pass character test due to having a “substantial criminal record” under s 501(6)(a) Migration Act 1958 (Cth) – whether there was another reason why mandatory cancellation should be revoked – whether Minister erred by failing to consider a substantial claim raised in representations made on behalf of the applicant, that Cuba would be likely to deny re-entry to the applicant which would render the applicant effectively stateless – whether Minister erred by failing to consider Australia’s non-refoulement obligations owed to the Applicant and the real possibility that, as a consequence of cancelling his visa, the Applicant would be held in detention indefinitely – meaning of Minister’s statement that he was unable to make a finding about the risk of harm – application upheld
Legislation:	Acts Interpretation Act 1901 (Cth) s 25D Migration Act 1958 (Cth) ss 197C, 198, 476A(1)(c), 476A(2), 499, 501(3A), 501(6)(a), 501(7)(c), 501C, 501CA(1), 501CA(4), 501G
Cases cited:	Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 Minister for Home Affairs v Omar (2019) 272 FCR 589 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Division:	General Division
Registry:	Western Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	62
Date of hearing:	9 April 2021
Counsel for the Applicant:	G Barns SC
Solicitor for the Applicant:	Estrin Saul Lawyers
Counsel for the Respondent:	P Macliver
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		WAD 279 of 2020
BETWEEN:	PEDRO FRANCISCO PERERA Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

order made by:	O'BRYAN J
DATE OF ORDER:	22 APRIL 2021

THE COURT ORDERS THAT:

1. A writ of certiorari be issued to quash the decision made by the Respondent on 9 November 2020.

2. A writ of mandamus be issued directing the Respondent to reconsider the Applicant’s revocation request according to law.

3. The Respondent pay the Applicant’s costs of this proceeding.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1. This is an application made under s 476A(1)(c) of the Migration Act 1958 (Cth) (Act) seeking judicial review of a decision made personally by the Minister under s 501CA(4) of the Act on 9 November 2020 not to revoke the cancellation of the applicant’s visa.

2. The applicant is a national of Cuba born on 28 December 1981. He arrived in Australia as a minor with his mother on 23 January 1997. He has resided in Australia since that time. His mother arrived in Australia as the holder of a Class BC Subclass 100 Spouse visa and the applicant holds the same visa. His mother has since become an Australian citizen.

3. The applicant has a lengthy criminal history dating back to 2000 and which culminated in convictions on 29 October 2014 in South Australia for the offences of threatening to kill or endanger life and engaging in sexual intercourse with a person without consent, for which he received a single sentence of 6 years’ imprisonment. These two offences were committed against a 16 year old girl.

4. On 16 December 2019, a delegate of the Minister cancelled the applicant's visa as required by s 501(3A) of the Act. It is not in dispute that the applicant did not pass the character test in s 501(3A)(a)(i) because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(c) (sentenced to a term of imprisonment of 12 months or more). The applicant was notified of this decision and was invited to make representations about the revocation of the decision to cancel his visa. The applicant made representations in response to that invitation including, relevantly, by a submission of MSM Legal, acting on behalf of the applicant, dated 13 January 2020.

5. On 9 November 2020, the Minister decided under s 501CA(4) of the Act not to revoke the cancellation of the applicant's visa. On 11 November 2020, the applicant was notified of that decision.

6. On 1 December 2020, the applicant filed an originating application in this Court seeking review of the decision of the Minister. Section 476A(1)(c) of the Act gives the Court jurisdiction to review the decision of the Minister, and s 476A(2) stipulates that the jurisdiction is the same as the jurisdiction of the High Court under s 75(v) of the Constitution. Consistently with that limitation, the relief sought by the applicant in his originating application is a writ of certiorari quashing the decision of the Minister and a writ of mandamus remitting the matter to the Minister for determination according to law. The originating application stated three grounds of review. The applicant did not press the second ground at the hearing.

7. At the hearing of the application, the Minister read an affidavit of Arran Niall Gerrard affirmed 26 March 2021. Mr Gerrard is a Senior Lawyer with the Australian Government Solicitor, solicitors for the Minister. Mr Gerrard’s affidavit exhibited two documents that had been referenced in the applicant’s submission to the Minister dated 13 January 2020. The documents are relevant to the applicant’s first ground of review.

8. For the reasons that follow, I uphold the first ground of review but dismiss the third ground. I consider that, by reason of the first ground of review, the Minister’s decision is affected by jurisdictional error. The decision should be quashed and the matter remitted to the Minister for reconsideration.

Legislative Provisions

9. Section 501(3A) of the Act provides that the Minister (or a delegate) 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) (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.

10. Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subs (7)). Section 501(7)(c) provides that a person has a...