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

• Jurisdiction: Australia Federal only
• Judgment Date: 02 September 2021
• Neutral Citation: [2021] FCA 1050
• Court: Federal Court
• Date: 02 September 2021

Federal Court of Australia

PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050

Appeal from:	PYDZ v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1138
File number:	QUD 163 of 2021
Judgment of:	MIDDLETON J
Date of judgment:	2 September 2021
Catchwords:	MIGRATION – judicial review of decision of decision of Administrative Appeals Tribunal under s 501CA(4) of the Migration Act 1958 (Cth) to not revoke delegate’s decision under s 501(3A) to cancel visa – whether validity of decision under s 501(3A) affects Tribunal’s ability to conduct review under s 501CA(4) – whether the Court has jurisdiction to review s 501(3A) decision under s 476A of the Act or under its accrued or associated jurisdiction – where Tribunal misapplied Direction 90 in considering the expectations of the Australian community – whether error material – whether there was a failure to consider country information – whether applicant was denied procedural fairness by the Tribunal failing to consider claims – whether the Tribunal’s decision was legally unreasonable, illogical and irrational – application dismissed
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) Judiciary Act 1901 (Cth) Migration Act 1958 (Cth)
Cases cited:	AFX17 v Minister for Home Affairs [2020] FCA 807 Ali v Minister for Home Affairs (2020) 278 FCR 627 Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32 CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 DDP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 275 Kelekci v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1000 FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 FYBR v Minister for Home Affairs [2019] FCA 500 FYBR v Minister for Home Affairs (2019) 272 FCR 454 Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA 24 Minister for Home Affairs v Omar (2019) 272 FCR 589 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PWDL [2020] FCA 394 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Re Wakim; Ex Parte McNally (1999) 198 CLR 511 Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619 Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	175
Date of hearing:	3 August 2021
Counsel for the Applicant:	Dr J Donnelly
Solicitor for the Applicant:	Scott Calnan Lawyer
Counsel for the First Respondent:	Ms R Francois
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Applicant:	The Second Respondent filed a submitting notice

ORDERS

		QUD 163 of 2021
BETWEEN:	PYDZ Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	MIDDLETON J
DATE OF ORDER:	2 September 2021

THE COURT ORDERS THAT:

1. The application for an extension of time for the review of a migration decision dated 11 August 2021 be dismissed.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1. The applicant is a 44 year old male citizen of the Philippines. He arrived in Australia in 1991 and has lived continuously in Australia since that date. He has a long history of offending, including some offences which have led to periods of imprisonment. He is currently in immigration detention.

2. On 12 December 2019, while the applicant was serving a sentence of imprisonment, the applicant’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘Act’). On 29 January 2021, a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘Minister’) determined not to revoke the cancellation decision.

3. The applicant applied to the second respondent, the Administrative Appeals Tribunal (‘Tribunal’) for review of the delegate’s decision. On 23 April 2021 the Tribunal affirmed the delegate’s decision not to revoke the cancellation of the visa under s 501CA(4) of the Act and subsequently published its reasons: PYDZ v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1138. The applicant now seeks to review that decision in this Court.

4. In his amended originating application, the applicant seeks writs of certiorari and mandamus quashing the Tribunal’s decision and requiring it to determine the application according to law, as well as a declaration that the cancellation decision was invalid.

5. At the outset, I note that there is a dispute as to the jurisdiction of this Court to review the cancellation decision (as distinct from the Tribunal’s decision about whether the cancellation decision ought to be revoked). I will return to this issue later in my reasons in relation to Ground 1B of the application. At this point, it suffices to say that as a precautionary measure, in case I were to find that this Court has jurisdiction in respect of the cancellation decision but the 35 day period under s 477A(2) of the Act had expired, at the hearing I gave leave to the applicant to file a written application seeking an extension of time. The applicant filed such an application and a supporting affidavit on 12 August 2021, and the...