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

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 19 April 2021
• Neutral Citation: [2021] FCAFC 55
• Date: 19 April 2021

Federal Court of Australia

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55

Appeal from:	WKMZ v Minister for Home Affairs [2020] FCA 1127
File number(s):	VID 596 of 2020
Judgment of:	KENNY, MORTIMER and abraham jJ
Date of judgment:	19 April 2021
Catchwords:	MIGRATION – appeal from single Judge dismissing application for review of decision of Administrative Appeals Tribunal to refuse to revoke mandatory cancellation of visa on character grounds under s 501A of the Migration Act – proper construction of ss 197C and 198 of the Migration Act – consistency of Ministerial Direction 79 with s 197C, considered – meaning of indefinite detention – appeal dismissed
Legislation:	Migration Act 1958 (Cth), ss 197C, 198, 501, 501A
Cases cited:	AJL20 v Commonwealth [2020] FCA 1305 Al Kateb v Godwin [2004] HCA 37; 219 CLR 562 Ali v Minister for Immigration and Border Protection [2018] FCA 650 Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; 383 ALR 194 AQM18 v Minister for Immigration [2019] FCAFC 27; 268 FCR 424 AQM18 v Minister for Immigration and Border Protection [2018] FCA 944; 162 ALD 449 ASP15 v Commonwealth of Australia [2016] FCAFC 145; 248 FCR 372 BDQ19 v Minister for Home Affairs [2019] FCA 1630; 167 ALD 38 BKS18 v Minister for Home Affairs [2018] FCA 1731 CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 CWGF v Minister for Home Affairs [2019] FCA 1802 CZCV v Commonwealth [2020] FCA 1864 DFDT v Minister for Home Affairs [2020] FCA 859 DFTD v Minister for Home Affairs [2020] FCAFC 207 DGBK v Minister for Home Affairs [2019] FCA 1479 Dharma v Minister for Home Affairs [2020] FCA 550 DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576 FRH18 v Minister for Home Affairs [2018] FCA 1769; 266 FCR 413 FTJ18 v Minister for Home Affairs [2019] FCA 1775 GBV18 v Minister for Home Affairs [2020] FCAFC 17; 274 FCR 202 HVLC v Minister for Home Affairs [2019] FCA 616 Khalil v Minister for Home Affairs [2019] FCAFC 151; 271 FCR 326 Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 NATB v Minister for Immigration [2003] FCAFC 292; 133 FCR 506 NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 NKWF v Minister for Home Affairs [2018] FCA 409 Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1 Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; 251 CLR 322 Plaintiff M96A/2016 v Commonwealth [2017] HCA 16; 261 CLR 582 Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 PRHR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2782 SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125; 234 FCR 1 Taulahi v Minister for Immigration & Border Protection [2016] FCAFC 177; 246 FCR 146 TCWY v Minister for Immigration and Border Protection [2017] FCA 1276 XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 323 XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 167
Division:
Registry:
National Practice Area:
Number of paragraphs:	165
Date of last submission/s:	25 February 2021
Date of hearing:	3 February 2021
Counsel for the Appellant:	Mr M Guo
Solicitor for the Appellant:	Victoria Legal Aid
Counsel for the First Respondent:	Ms C Symons
Solicitor for the First Respondent:	Sparke Helmore

ORDERS

		VID 596 of 2020
BETWEEN:	WKMZ Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	Kenny, MORTIMER and abraham JJ
DATE OF ORDER:	19 April 2021

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal, to be fixed by way of lump sum.

3. In the absence of any agreement in accordance with Order 2, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

KENNY AND MORTIMER JJ:

1. The appellant has held a Global Special Humanitarian visa since 3 October 2005, having come to Australia from what was then the nation of Sudan. He is from a small ethnic group, which is traditionally located on both sides of the border between what is now Sudan and South Sudan. Due to the commission of a series of criminal offences, the appellant had his visa cancelled in September 2016, but that cancellation was subsequently revoked after the appellant made representations to the Minister. The appellant was convicted of further criminal offences on his release from prison in late 2017, and on 22 October 2018, a delegate of the Minister cancelled the appellant’s visa for a second time, pursuant to the mandatory cancellation provisions in s 501(3A) of the Migration Act 1958 (Cth). It is that decision which is the foundation for the issues arising before the primary judge, and on this appeal.

2. For the reasons set out below, the orders of the primary judge made on 7 August 2020 are not affected by the error identified by the appellant, and the appeal must be dismissed.

The Tribunal decision

3. The appellant sought revocation of the October 2018 visa cancellation decision, but revocation was refused by the Minister’s delegate on 17 July 2019. On 22 July 2019, the appellant applied for review of that refusal in the Administrative Appeals Tribunal.

4. The time in which the Tribunal must make a decision on such a review is affected by s 500(6L)(c) of the Migration Act, which provides that if a decision is not made within 84 days, the Tribunal is deemed to have affirmed the decision under review. In this case, the Tribunal made its decision on the last available day and gave reasons approximately two weeks later. A Full Court of this Court has found such a practice is lawful: see in Khalil v Minister for Home Affairs [2019] FCAFC 151; 271 FCR 326 at [48].

5. The Tribunal found the appellant had a “substantial criminal record” within the meaning of s 501(6)(a), read with s 501(7)(c) of the Act, as the appellant had been...