PQSM v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 24 July 2020
• Neutral Citation: [2020] FCAFC 125
• Date: 24 July 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

PQSM v Minister for Home Affairs [2020] FCAFC 125

Appeal from:	PQSM v Minister for Home Affairs [2019] FCA 1540
File number:	WAD 508 of 2019
Judges:	MORTIMER, BANKS-SMITH AND JACKSON JJ
Date of judgment:	24 July 2020
Catchwords:	MIGRATION - appeal from a decision of the Federal Court of Australia - where appellant's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) - where appellant committed numerous criminal offences - where delegate of Minister made decision not to revoke cancellation of visa under s 501CA(4) - where Tribunal affirmed delegate's decision not to revoke cancellation - where primary judge dismissed application for review - where primary judge held that Tribunal failed to consider impact of non-revocation on appellant's partner and two adult children - where primary judge held that Tribunal's failure was not material and therefore not jurisdictional error - whether primary judge erred in finding that Tribunal's failure was not material - consideration of principle of materiality - consideration of Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 - consideration of breadth of application of Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 - consideration of standard of materiality to apply to failure to have regard to consideration made mandatory under the Migration Act - where primary judge applied correct standard of materiality - where primary judge did not misapply test - no appealable error disclosed - appeal dismissed
Legislation:	Migration Act 1958 (Cth) ss 438, 476A, 499, 501, 501CA
Cases cited:	AEM20 v Minister for Home Affairs [2020] FCA 623 Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222 Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663 Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66 Craig v South Australia [1995] HCA 58; 184 CLR 163 Degning v Minister for Home Affairs [2019] FCAFC 67; 270 FCR 451 DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 72 DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134 DQM18 v Minister for Home Affairs [2020] FCAFC 110 Enfield City Corporation v Development Assessment Commission [2000] HCA 5; 199 CLR 135 EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; 268 FCR 299 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 Hanks v Minister of Housing and Local Government [1963] 1 QB 999 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 Khalil v Minister for Home Affairs [2019] FCAFC 151; 271 FCR 326 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Lansen v Minister for Environment and Heritage [2008] FCAFC 189; 174 FCR 14 Martincevic v Commonwealth [2007] FCAFC 164; 164 FCR 45 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; 268 FCR 379 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 Minister for Immigration and Citizenship v Obele [2010] FCA 1445; 119 ALD 358 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Nguyen v Minister for Home Affairs [2019] FCAFC 128; 270 FCR 555 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; 264 CLR 1 R v Chief Registrar of Friendly Societies, Ex parte New Cross Building Society [1984] QB 227 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; 74 AAR 545 SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779 Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 Uelese v Minister for Immigration and Citizenship [2013] FCAFC 86; 60 AAR 534 VKTT v Minister for Home Affairs [2019] FCA 1018 Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112
Date of hearing:	3 February 2020
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	156
Counsel for the Appellant:	Mr HW Glenister
Solicitor for the Appellant:	Cathal Smith Legal Pty Ltd
Counsel for the First Respondent:	Mr PR Macliver
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Counsel for the Second Respondent:	The second respondent filed a submitting notice save as to costs

ORDERS

		WAD 508 of 2019
BETWEEN:	PQSM Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES:	MORTIMER, BANKS-SMITH AND JACKSON JJ
DATE OF ORDER:	24 July 2020

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay the first respondent's costs, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MORTIMER J:

Introduction and summary

1. The issues on this appeal reveal the challenges in applying the concept of “materiality” set out in the majority’s decision in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421. This appeal throws up with some acuity the question of whether the majority’s reasons in SZMTA have altered the approach as previously understood in Australian administrative law to the circumstances in which either a failure to undertake the statutory task, or a...