Raibevu v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 10 March 2020
• Neutral Citation: [2020] FCAFC 35
• Date: 10 March 2020

FEDERAL COURT OF AUSTRALIA

Raibevu v Minister for Home Affairs [2020] FCAFC 35

Appeal from:	Raibevu v Minister for Home Affairs [2018] FCA 2052
File number:	NSD 231 of 2019
Judges:	PERRAM, MARKOVIC AND CHARLESWORTH JJ
Date of judgment:	10 March 2020
Catchwords:	MIGRATION – visa cancelled on character grounds – refusal of Assistant Minister to revoke cancellation decision – whether Assistant Minister committed jurisdictional error by having only selective regard to sentencing remarks – whether Assistant Minister’s decision affected by legal unreasonableness ; HIGH COURT AND FEDERAL COURT – application to introduce new arguments on appeal – where grant of leave would undermine the purpose of the conferral of appellate jurisdiction – duty of appellant’s legal representative in relation to the orderly and timely preparation of the appellant’s case – whether appellant had legal assistance at first instance notwithstanding no notice of acting had been filed on his behalf – absence of explanation for failure to advance arguments in judicial review proceedings at first instance – proposed grounds of appeal lacking in merit – leave to introduce new grounds refused ; CONSTITUTIONAL LAW – application for leave to introduce on appeal issues arising under the Constitution not previously argued – whether acceptance of proposed grounds would sound in the relief sought – proposed grounds having no utility – proposed grounds having insufficient prospects of success to justify the grant of leave
Legislation:	Constitution, Ch III Migration Act 1958 (Cth) ss 5, 189, 474, 501, 501CA, 501G Crimes (Administration of Sentences) Act 1999 (NSW) Div 1 Crimes (Sentencing Procedure) Act 1999 (NSW) s 126
Cases cited:	AAD16 v Minister for Immigration and Border Protection [2018] FCA 1433 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Attorney General (NSW) v Quin (1990) 170 CLR 1 Attorney-General (NSW) v Brewery Employees’ Union of NSW (1908) 6 CLR 469 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; 190 ALR 543 Hong v Minister for Immigration and Border Protection [2019] FCAFC 55 Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51 Knight v Victoria (2017) 261 CLR 306 Lyons v Minister for Immigration and Border Protection [2017] FCA 1381 Melbourne Corporation v Commonwealth (1947) 74 CLR 31 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Patterson; ex parte Taylor (2001) 207 CLR 391 SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588
Date of hearing:	10 February 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	124
Counsel for the Appellant:	Mr J Williams
Solicitor for the Appellant:	K Q Solicitors
Counsel for the Respondent:	Mr P Knowles
Solicitor for the Respondent:	Mills Oakley Lawyers

ORDERS

		NSD 231 of 2019
BETWEEN:	SEREMAIA TUWAI RAIBEVU Appellant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGES:	PERRAM, MARKOVIC AND CHARLESWORTH JJ
DATE OF ORDER:	10 March 2020

THE COURT ORDERS THAT:

1. Leave to rely on ground 2 of the amended notice of appeal filed on 17 June 2019 is refused.

2. Leave to rely on ground 3 of the proposed further amended notice of appeal is refused.

3. The appeal is dismissed.

4. The appellant is to pay the respondent’s costs of the appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT

THE COURT:

1. Mr Seremaia Raibevu is a citizen of Fiji. He arrived in Australia in 1995, aged 15 years. He has resided here since then as the holder of a visa granted under the Migration Act 1958 (Cth).

2. Mr Raibevu has been convicted of about 25 criminal offences in Australia. These include convictions in 2004 and 2008 for assaults against his de facto partner and a conviction in 2012 on four counts of Aggravated Sexual Assault – Break and Enter with Intent committed in September 2011. For the sexual offences, Mr Raibevu was sentenced to two terms of nine years imprisonment and two terms of six years imprisonment, to be served concurrently. As a result of the sexual offences and the sentences imposed for them, Mr Raibevu is a person who cannot satisfy the character test as defined in s 501(6)(a) of the Act.

3. On 1 February 2017, a delegate of the Minister for Home Affairs cancelled Mr Raibevu’s visa. That decision (the cancellation decision) was mandated by s 501(3A) of the Act and was made shortly before Mr Raibevu was eligible to apply for parole.

4. The Assistant Minister for Home Affairs (hereafter, the Minister) refused to revoke the cancellation decision in the exercise of the power conferred by s 501CA of the Act (the non-revocation decision). The Minister concluded that Mr Raibevu posed an unacceptable risk of harm to the Australian community and that the risk of harm outweighed other considerations favouring revocation of the cancellation decision.

5. Mr Raibevu made a belated application for judicial review of the Minister’s decision. The primary judge granted Mr Raibevu an extension of time to commence the application but dismissed it on its merits: Raibevu v Minister for Home Affairs [2018] FCA 2052 (Reasons). This is an appeal from that judgment.

6. For the reasons that follow, the appeal should be dismissed.

THE NON-REVOCATION DECISION

7. The Minister may revoke a decision to cancel a visa under s 501(3A) if the person makes representations in accordance with an invitation under s 501CA(3)(b) and the Minister is satisfied that the person passes the character test or that there is another reason why the decision should be revoked: Act, s 501CA(4).

8. Mr Raibevu was given a written invitation to make representations to the Minister about the cancellation decision in accordance with s 501CA(3)(b) of the Act, which he did. Among other things, Mr Raibevu claimed that he had been rehabilitated, that he would not reoffend and that he did not present a risk of...