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

• Jurisdiction: Australia Federal only
• Judgment Date: 16 November 2021
• Neutral Citation: [2021] FCA 1394
• Court: Federal Court
• Date: 16 November 2021

FEDERAL COURT OF AUSTRALIA

QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394

Review of:	QDQY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 125
File number:	VID 171 of 2020
Judgment of:	ANASTASSIOU J
Date of judgment:	16 November 2021
Catchwords:	MIGRATION – mandatory cancellation of visa on character grounds pursuant to s 501(3A) of the Migration Act 1958 (Cth) – representations made seeking revocation of the cancellation decision under s 501CA(4) of the Migration Act – Administrative Appeals Tribunal decided not to revoke the cancellation decision – whether Tribunal engaged in an active intellectual process regarding claim of generalised violence and deteriorating living conditions in Iraq – whether there was a mere recitation of, or passing reference to, the ‘clearly expressed’ representation – whether representation was ‘objectively significant’ – genuine and proper evaluation of Applicant’s claim – whether Tribunal bound by rules of evidence – whether Tribunal relied on untested and uncorroborated hearsay evidence contained in South Australian Police (SAPOL) records in evaluating risk of recidivism and finding that the Applicant represented an unacceptable risk of harm to the Australian community – whether reliance on SAPOL records prejudicially impacted the Tribunal’s reasoning – application dismissed
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)(c) Migration Act 1958 (Cth), ss 501(3A), 501(6)(a), 501(7)(c), 501CA(4) Ministerial Direction 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Cases cited:	Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; 271 FCR 595 Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7; 255 CLR 352 AXT19 v Minister for Home Affairs [2020] FCAFC 32 Basyouni v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 119; 169 ALD 298 Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 Brown v Minister for Immigration and Citizenship [2009] FCA 1098; 112 ALD 67 Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113 Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 Casey v Repatriation Commission [1995] FCA 847; 60 FCR 510 DQM18 v Minister for Home Affairs [2020] FCAFC 110; 278 FCR 529 EVK18 v Minister for Home Affairs [2020] FCAFC 49; 274 FCR 598 FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 88 ALJR 754 Grapsas v Minister for Infrastructure and Regional Development [2020] FCA 525 Guclukol v Minister for Home Affairs [2020] FCAFC 148; 279 FCR 611 Hughes v The Queen [2017] HCA 20; 263 CLR 338 Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister for Immigration and Ethnic Affairs v Baker [1997] FCA 105; 73 FCR 187 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 RJE v Secretary to the Department of Justice [2008] VSCA 265; 21 VR 526 CVN17 v Minister for Immigration and Border Protection [2019] FCA 13; 163 ALD 101 XMBQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2134; 168 ALD 267
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	97
Date of last submissions:	6 October 2020 (First Respondent) 9 October 2020 (Applicant)
Date of hearing:	28 September 2020
Counsel for the Applicant:	Mr J. Tito
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the First Respondent:	Mr G. Hill SC
Solicitor for the First Respondent:	The Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent did not appear

ORDERS

		VID 171 of 2020
BETWEEN:	QDQY Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	ANASTASSIOU J
DATE OF ORDER:	16 November 2021

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The Applicant is to pay the First Respondent’s costs of and incidental to the application, to be agreed or assessed failing agreement.

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

REASONS FOR JUDGMENT

ANASTASSIOU J:

INTRODUCTION

1 On 4 March 2020, the Applicant applied for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal, which affirmed a decision of a delegate of the First Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to cancel the Applicant's Class BB Subclass 155 Resident Return visa pursuant to s 501(3A) of the Migration Act 1958 (Cth).

2 For the reasons that follow, the application should be dismissed.

BACKGROUND

3 The Applicant was born in 1985 and is a citizen of Iraq. He arrived in Australia on 20 August 2001 at the age of 16, without a valid visa. On 19 December 2005, he was granted a Subclass 866 Protection Visa for five years, which expired on 4 February 2011. On 17 June 2011, the Applicant was granted a Class BB Subclass 155 Resident Return visa, which is the subject of this application.

4 On 15 March 2012, the Applicant was sentenced to a term of imprisonment for two years and 10 months and fixed with a non-parole period of 18 months for the offence of intentionally causing harm. That sentence was suspended and the Applicant entered into bond to be of good behaviour for two years. However, within the period of the good behaviour bond, the Applicant offended again. Accordingly, on 10 October 2014, the Applicant was convicted for the offence of cultivating a commercial quantity of a controlled plant. The conviction arose from the Applicant’s role as a ‘crop-sitter’ for 25 cannabis plants. As a result, the suspension of the Applicant’s earlier sentence was revoked and he was sentenced to a cumulative period of imprisonment of four years and four months, with a non-parole period of two years and three months.

5 Pursuant to s 501(3A) of the Migration Act, the Minister is required to cancel a visa that has been granted...