Tran v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Judgment Date: 07 August 2019
• Neutral Citation: [2019] FCAFC 126
• Date: 07 August 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Tran v Minister for Immigration and Border Protection [2019] FCAFC 126

Appeal from:	Tran v Minister for Immigration and Border Protection [2018] FCA 342
File number:	NSD 499 of 2018
Judges:	GREENWOOD, CHARLESWORTH AND O’CALLAGHAN JJ
Date of judgment:	7 August 2019
Catchwords:	MIGRATION – consideration of whether the Assistant Minister engaged in jurisdictional error in making a non-revocation decision for the purposes of s 501CA(4) of the Migration Act 1958 (Cth)
Legislation:	Migration Act 1958 (Cth) ss 501, 501CA
Cases cited:	Attorney‑General (NSW) v Quin (1990) 170 CLR 1 BP117 v Minister for Immigration and Border Protection [2019] FCA 637 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Craig v South Australia (1995) 184 CLR 163 Dunn v Minister for Immigration and Border Protection [2016] FCA 489 Falzon v Minister for Immigration and order Protection (2018) 262 CLR 333 Goundar v Minister for Immigration and Border Protection (2016) 160 ALD 123 Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 Kruger v The Commonwealth (1997) 190 CLR 1 Minister for Home Affairs v Buadromo (2018) 362 ALR 48 Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 Omar v Minister for Home Affairs [2019] FCA 279 Re Patterson; Ex parte Taylor (2001) 207 CLR 391 Swift v SAS Trustee Corporation (2010) 6 ASTLR 339 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Tran v Minister for Immigration and Border Protection [2018] FCA 342 Tickner v Chapman (1995) 57 FCR 451
Date of hearing:	29 August 2018
Date of last submissions:	29 August 2018
Registry:
Division:
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	185
Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondents:	Ms R Francois
Solicitor for the Respondents:	Mills Oakley

ORDERS

		NSD 499 of 2018
BETWEEN:	BA GIANG TRAN Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE:	GREENWOOD, CHARLESWORTH AND O’CALLAGHAN JJ
DATE OF ORDER:	7 AUGUST 2019

THE COURT ORDERS THAT:

1. Leave is granted to the appellant to rely upon matters and grounds not advanced before the primary Judge.

2. The appeal be dismissed.

3. The appellant pay the respondent’s costs of and incidental to the appeal.

4. The appellant’s interlocutory application filed 7 August 2018 seeking an adjournment of the appeal is dismissed.

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

REASONS FOR JUDGMENT

GREENWOOD J:

Background

1. This is an appeal from the whole of the judgment of Bromwich J (the “primary judge”) who made orders on 19 March 2018 dismissing the appellant’s application for judicial review of a decision made by the Parliamentary Secretary to the Minister for Immigration and Border Protection (hereafter called the “Assistant Minister”) not to revoke the cancellation of the appellant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) (the “Act”): Tran v Minister for Immigration and Border Protection [2018] FCA 342.

2. The appellant is a citizen of Vietnam who arrived in Australia on 7 June 1990 at the age of 15 as the holder of a Funded Special Humanitarian (subclass K4B12) visa. Since arriving in Australia, the appellant has departed Australia only once when he travelled to Vietnam in 1994 to visit his parents. On 15 November 1994, the appellant was granted a Class BB Subclass 155 Five Year Resident Return visa (“visa”). The appellant thus became a lawful non‑citizen under the Act.

3. On 26 April 2016, a delegate of the Minister for Immigration and Border Protection cancelled the appellant’s visa on character grounds pursuant to s 501(3A) of the Act (the “cancellation decision”). Section 501(3A) provides that if the Minister is satisfied that a person does not pass the character test because, relevantly in this case, the person has a “substantial criminal record” (as that term is defined by s 501(7)(c); that is, “the person has been sentenced to a term of imprisonment of 12 months or more”), and the person is serving a sentence of imprisonment on a full‑time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory, the Minister must cancel the visa.

4. In this case, the delegate was satisfied on (or as at) 26 April 2016, based on information before the Department of Immigration and Border Protection, that the appellant did not pass the character test on the following ground:

You have a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(a), (b) or (c) of the Act. Under s 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 13 September 2013 you were convicted of Aggravated Break and Enter a Dwelling House and sentenced to six years imprisonment.

[emphasis in original]

5. In the delegate’s letter of 26 April 2016, the delegate also said this:

The information based on which the decision maker was satisfied that you do not pass the character test is Sentencing Remarks in the District Court of New South Wales at Sydney on 13 September 2013.

6. The delegate was also satisfied, based on the “information available”, that the appellant was serving a sentence of imprisonment, on a full‑time basis, in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory having regard to a “Conviction, Sentences and Appeals report” from the New South Wales Department of Corrective Services dated 11 April 2016.

7. Section 501CA(3)(a) casts a mandatory obligation on the Minister to give the appellant in respect of a cancellation decision under s 501(3A), written notice that sets out the original decision and particulars of the “relevant information” (as defined). Section 501CA(3)(b) casts a mandatory obligation on the Minister to invite the appellant to “make representations to the Minister” within the relevant period (and in the manner set out in the Migration Regulations 1994 (Cth)) “about revocation of the original decision”. Section 501CA(4), at the date of the Assistant Minister’s decision, provided that the Minister may revoke the original decision if the person “makes representations” in accordance with the invitation and the Minister “is satisfied” that the person passes the character test (s 501CA(4)(b)(i) of the Act) or there is “another reason why the original decision should be revoked”: s 501CA(4)(b)(ii) of the Act....