VPKY v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: O’CALLAGHAN J
• Judgment Date: 06 November 2019
• Neutral Citation: [2019] FCA 1767
• Date: 06 November 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

VPKY v Minister for Home Affairs [2019] FCA 1767

Appeal from:	Application for judicial review: VPKY and Minister for Home Affairs (Migration) [2019] AATA 352
File number:	VID 332 of 2019
Judge:	O’CALLAGHAN J
Date of judgment:	6 November 2019
Catchwords:	MIGRATION – application for judicial review of decision not to revoke cancellation of visa – application dismissed
Legislation:	Migration Act 1958 (Cth), ss 501C(3A), 501CA(4)
Date of hearing:	4 October 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	34
Counsel for the Applicant:	A F L Krohn
Solicitor for the Applicant:	Carina Ford Immigration Lawyers
Counsel for the First Respondent:	G A Hill
Solicitor for the First Respondent:	Sparke Helmore

ORDERS

		VID 332 of 2019
BETWEEN:	VPKY Applicant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	O’CALLAGHAN J
DATE OF ORDER:	6 NOVEMBER 2019

THE COURT ORDERS THAT:

1. The application be dismissed, with costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

The application

1. By an amended originating application dated 5 July 2019, the applicant seeks judicial review of a decision by the second respondent (the tribunal), which affirmed a decision by a delegate of the first respondent (the Minister) made under s 501CA(4) of the Migration Act 1958 (Cth) (the Act), not to revoke the cancellation of the applicant’s visa under s 501(3A) of the Act.

2. There are two grounds, namely:

1. The Tribunal fell into jurisdictional error in that it failed to take account of relevant considerations.

Particulars

(a) The Tribunal did not consider as required under the First Respondent’s (the Minister’s) Direction 79 – Migration Act 1958 – Direction under section 499 Visa refusal and cancelation under s501 and revocation of mandatory cancellation of a visa under s501CA (the Direction), the considerations of Protection of the Australian community (including the risk to the Australian Community), Expectations of the Australian Community, Impact on family members, Impediments if removed, and under the global weighing of the considerations, that it was almost certain that a decision not to revoke the cancellation of the Applicant’s visa would mean that:

(i) she would never see her parents again;

(ii) she would be excluded from being present in their last years;

(iii) she would be excluded from caring for them as well as them being prevented from receiving her care as a daughter and as a nurse and a person with experience working with the elderly; and

(iv) her parents would die without her being able to be present.

(v) She may never see other members of her closely knit family again, including her sisters, daughter, grandchild, nieces, nephews and great niece and nephew who live in Australia.

(b) The Tribunal did not consider the grave distress which would be suffered by the Applicant, her parents and all members of her closely knit family by reason of the factors set out in Particular 1(a).

(c) The Tribunal did not consider the significance of the prospects of the Applicant not re-offending, of the combined effect of her present age, and her release plans, together with the length of time the applicant had been free from serious offending after her release from prison after conviction in 2002.

2. The Tribunal fell into jurisdictional error in that it was unreasonable.

Particulars

(a) The Tribunal was unreasonable in assessing the considerations under the Direction of:

(i) Protection of the Australian community (including the risk to the Australian Community),

(ii) Expectations of the Australian Community,

(iii) Impact on family members, and

(iv) Impediments if removed.

(b) The Tribunal was unreasonable because of the matters set out in the Particulars to Ground 1.

(c) The Tribunal was unreasonable in determining that the balance of all relevant considerations weighed in favour of cancellation.

The facts

3. The applicant is a British citizen born in 1961. She emigrated to Australia with her immediate family in 1969. She has lived in Australia ever since. Almost all her family members live in Australia, including her elderly parents, sibling, daughter, grandson, grandniece and nephew.

4. On 7 September 2017, the applicant’s visa was cancelled under s 501(3A) of the Act.

5. The applicant has a “substantial criminal record” within the meaning of s 501(3A)(a)(i) (read with s 501(6)(a) and (7)(c)). That record dates back decades.

6. Most recently in March 2017, the applicant was sentenced by the Supreme Court of Queensland to 6 years’ imprisonment for trafficking in dangerous drugs. (The applicant was paroled in August 2018 and is currently being held in immigration detention).

7. By reason of that sentence, the applicant was at relevant times serving a full-time sentence of imprisonment in a custodial institution for an offence against State law within the meaning of s 501(3A)(b).

8. The applicant requested revocation of the cancellation decision, made a statement in August 2018, and through her representative provided representations in September 2018.

9. On 14 December 2018, a delegate of the Minister decided not to revoke the cancellation decision.

10. On 18 December 2018, the applicant sought review of the delegate’s decision in the tribunal.

11. The applicant filed contentions, together with supporting documents. The applicant also filed a list of witnesses and a response to the Minister’s submission.

12. The Minister filed contentions dated 12 February 2019.

13. The tribunal conducted a hearing on 25 February 2019, and on 8 March 2019, affirmed the decision under review.

14. The tribunal weighed in the balance, on the one hand, the serious nature of the applicant’s prior offending; that the risk of her reoffending remains real with a potential for further harm to the community should that occur, and on the other hand the impact on her family; the length of time she has lived in Australia; the very significant ties the applicant has to the Australian community, as well as the challenges she may face if she were to return to the United Kingdom. It concluded that “[h]aving very carefully weighed all of the considerations, [it was] satisfied that the overall balance weighs slightly in favour of a decision to not revoke the mandatory cancellation of the applicant’s visa”.

15. The reasons of the tribunal about the impact on the applicant’s family, which is the subject of ground 1, are as follows:

59. The Australian community would … expect careful consideration [to be] given to the potential impact [that] not revoking the mandatory cancellation of the applicant’s visa could have on the applicant’s other family members including her elderly parents, sisters and daughter. This is particularly so having regard to the health concerns of the applicant’s ageing parents.

…

Impact on family members (and strength, nature and duration of ties more broadly)

63. The applicant has lived in Australia from seven years of age. At the date of the hearing she was 57 years of age. Her parents, sisters, daughter, grandchild, nieces and nephews and great niece and nephew all live in Australia. The applicant also has one other adult niece who lives in overseas (sic).

64. A significant number of witness statements were provided in support of the applicant. These statements were submitted by family members, friends, support workers and other acquaintances. They demonstrate that the...