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

• Jurisdiction: Australia Federal only
• Judgment Date: 12 November 2020
• Neutral Citation: [2020] FCAFC 196
• Court: Full Federal Court (Australia)
• Date: 12 November 2020

Federal Court of Australia

Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196

File number:	NSD 665 of 2020
Judgment of:	RARES, ANASTASSIOU AND STEWART JJ
Date of judgment:	12 November 2020
Catchwords:	MIGRATION – statutory interpretation – whether “makes” in s 501CA(4)(a) of the Migration Act 1958 (Cth) and “made” in reg 2.52 of the Migration Regulations 1994 (Cth) means “received” by the Minister or “dispatched” by the applicant – calculation of 28 day period within which representations for revocation of a mandatory visa cancellation must be “made” – statutory context of applicant for revocation necessarily being in custody – desirability of avoiding consequences that are irrational or unjust – different wording, i.e. “received”, used in different reg – different meaning intended – representations “made” when given to prison authorities for dispatch to the Minister ; MIGRATION – mandatory cancellation of a visa under s 501(3A) of the Migration Act 1958 (Cth) – decision not to revoke cancellation under s 501CA(4) – where applicant made representations as to decline in mental health if removed – where applicant lived whole life since age 4 in Australia – where applicant suffers from mental illness and drug and alcohol addiction – whether Administrative Appeals Tribunal findings legally unreasonable – whether statutory decision making requirements met – no jurisdictional error
Legislation:	Acts Interpretation Act 1901 (Cth) s 36(2) Federal Court of Australia Act 1976 (Cth) s 20(1A) Migration Act 1958 (Cth) ss 499, 501(3A), 501(6)-(7), 501CA, 501D, 504 Migration Regulations 1994 (Cth) regs 2.52, 2.53(1), 2.55(7)(a) Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (28 February 2019)
Cases cited:	ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; 262 FCR 317 BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176 BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54 BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 Commissioner of Taxes (Vic) v Lennon [1921] HCA 44; 29 CLR 579 Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197; 169 FCR 151 Legal Services Board v Gillespie-Jones [2013] HCA 35; 249 CLR 493 Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 Minister for Immigration and Border Protection v Haq [2019] FCAFC 7; 267 FCR 513 Minister for Immigration and Border Protection v Kumar [2017] HCA 11; 260 CLR 367 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 Murray v Chief Examiner [2018] VSCA 144; 273 A Crim R 153 Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 46; 6 FCR 155 Prior v Mole [2017] HCA 10; 261 CLR 265 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd [1975] HCA 28; 132 CLR 336 Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; 238 FCR 404 Tallerman & Co Pty Ltd v Nathan’s Merchandise (Vic) Pty Ltd [1957] HCA 10; 98 CLR 93
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	71
Date of hearing:	23 September 2020
Counsel for the Applicant:	D Burwood (on a direct access basis)
Counsel for the First Respondent:	P Knowles
Solicitor for the First Respondent:	MinterEllison
Counsel for the Second Respondent:	The second respondent filed a submitting notice save as to costs

ORDERS

		NSD 665 of 2020
BETWEEN:	BRENDAN STEWART Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	RARES, ANASTASSIOU AND STEWART JJ
DATE OF ORDER:	12 NOVEMBER 2020

THE COURT ORDERS THAT:

1. The application be dismissed.

2. Subject to Order 3, the applicant pay half the first respondent’s costs of the application.

3. If any party opposes the costs order in Order 2, they shall file and serve written submissions of no more than 2 (two) pages within 7 (seven) days of these orders in support of the costs order that they seek.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. The applicant, Brendan Stewart, is a 45-year-old citizen of New Zealand who arrived in Australia in 1979 at age four. Prior to it being cancelled, the applicant held a Special Category (Temporary) (Class TY) (subclass 444) visa. The applicant has five children, including three minor sons, all of whom are Australian citizens.

2. The applicant has a lengthy criminal record in Australia from 1994 until his most recent convictions on 18 February 2019. On that date, the applicant was convicted of two counts of “common assault (DV)”, two counts of “contravene prohibition/restriction in AVO (Domestic)” and one count of “destroy or damage property (DV)”. He was sentenced to 15 months imprisonment with a non-parole period of 11 months. On appeal, the head sentence of 15 months was affirmed, but the non-parole period was reduced to nine months.

3. On 13 May 2019, the applicant’s visa was cancelled by a delegate of the first respondent (the Minister) under s 501(3A) of the Migration Act 1958 (Cth), on the basis that the applicant did not satisfy the character test set out in s 501(6) and (7) of the Act. Such cancellation is a mandatory requirement of s 501(3A).

4. The applicant made representations seeking to invoke, pursuant to s 501CA(4), the revocation of the cancellation decision by the Minister. On 18 February 2020, a delegate of the Minister notified the applicant of his decision not to revoke the cancellation of the applicant’s visa.

5. On 27 February 2020, the applicant applied for merits review of the decision of the delegate of the Minister in the Administrative Appeals Tribunal. The Tribunal (the Honourable John Pascoe AC CVO, Deputy President) affirmed the decision of the delegate of the Minister in a decision dated 11 May 2020.

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