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

• Jurisdiction: Australia Federal only
• Judgment Date: 08 June 2021
• Neutral Citation: [2021] FCA 619
• Court: Federal Court
• Date: 08 June 2021

Federal Court of Australia

XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619

Appeal from:	Application for judicial review of the Administrative Appeals Tribunal decision delivered on 11 September 2019 by Senior Member M Griffin QC
File number(s):	NSD 1570 of 2019
Judgment of:	BURLEY J
Date of judgment:	8 June 2021
Catchwords:	MIGRATION – judicial review of Administrative Appeals Tribunal (‘Tribunal’) decision under s 501CA(4) of the Migration Act 1958 (Cth) (‘Act’) to not revoke delegate’s visa cancellation decision under s 501(3A) – whether reasoning in Minister for Immigration and Border Protection v Makasa [2021] HCA 1 applies to power under s 501(3A) – where decision made under s 501(3A) affected by jurisdictional error – whether validity of s 501(3A) decision affects Tribunal’s ability to conduct review under s 501CA(4) – where Tribunal misapplied Direction 79 in considering the expectations of the Australian community – whether error material – application dismissed
Legislation:	Acts Interpretation Act 1901 (Cth) Administrative Appeals Tribunal Act 1975 (Cth) Migration Act 1958 (Cth) Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) Australia, House of Representatives, Migration Amendment (Character and General Visa Cancellation) Bill 2014
Cases cited:	Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; 276 FCR 75 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 37; 24 ALR 307 Corporation of the City of Enfield v Development and Assessment Commission [2000] HCA 5; 199 CLR 135 Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 FYBR v Minister for Home Affairs [2019] FCAFC 185; 319 ALR 601 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 Minister for Home Affairs v Brown [2020] FCAFC 21; 275 FCR 188 Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; 268 FCR 379 Minister for Immigration and Border Protection v Makasa [2021] HCA 1 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; 247 FCR 500 Plaintiff S174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 VKTT v Minister for Home Affairs [2019] FCA 1018 Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	112
Date of last submissions:	1 March 2021
Date of hearing:	24 July 2020
Counsel for the Applicant:	Mr T Bagley
Counsel for the First Respondent:	Ms R Francois
Solicitor for the First Respondent:	Clayton Utz

ORDERS

		NSD 1570 of 2019
BETWEEN:	XJLR Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	BURLEY J
DATE OF ORDER:	8 June 2021

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

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

REASONS FOR JUDGMENT

BURLEY J:

1 INTRODUCTION	[1]
2 THE BACKGROUND	[7]
3 RELEVANT LEGISLATION	[24]
4 THE DECISION OF THE TRIBUNAL	[30]
5 GROUND 1	[40]
5.1 Introduction	[40]
5.2 The submissions	[41]
5.3 Consideration of ground 1 and the jurisdictional fact issue	[45]
5.3.1 Introduction	[45]
5.3.2 Minister for Immigration and Border Protection v Makasa [2021] HCA 1	[51]
5.3.3 Application of Makasa to ss 501(3A) and 501CA	[57]
5.3.4 Application to the present facts	[78]
6 GROUND 2 – ERROR IN APPLICATION OF DIRECTION 79	[96]
6.1 The submissions	[96]
6.2 Consideration	[98]
7 DISPOSITION	[112]

1. INTRODUCTION

1. The applicant was born in New Zealand in 1976 and moved to Australia in 1992. He married in 1998 and had a child in that year. On 13 June 2018 a delegate of the Minister for Home Affairs purported to cancel the applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth). The applicant made representations in accordance with s 501CA(4)(a) to the effect that the Minister should revoke the decision to cancel the visa, but on 19 June 2019 a delegate of the Minister decided not to do so.

2. The applicant then applied to the Administrative Appeals Tribunal for review of the 19 June 2019 decision and on 11 September 2019 the Tribunal affirmed the decision of the delegate. The applicant seeks to review that decision in this Court.

3. By his Further Amended Originating Application the applicant seeks orders including: (1) a declaration that the purported mandatory cancellation decision made on 13 June 2018 was invalid and of no legal effect; (2) that the Tribunal decision be quashed; and (3) that the applicant be released from immigration detention forthwith. He relies on two grounds (particulars omitted):

1. the Tribunal’s decision was affected by jurisdictional error as it erred in its construction of s 501(3A) of the Act;

2. the Tribunal’s decision was affected by jurisdictional error as it erred in its construction of clause 13.3 of Direction 79.

4. The Minister defends the decision of the Tribunal.

5. The applicant was represented pro bono by Mr Bagley and the Minister by Ms Francois, both of counsel. Both provided written submissions in advance of the hearing and provided supplementary submissions after the conclusion of the hearing which addressed the decision of the High Court of Australia in Minister for Immigration and Border Protection v Makasa [2021] HCA 1. On 26 May 2021, the Minister drew the Court’s attention to Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 (Derrington J).

6. For the reasons set out below, I have concluded that the purported decision to cancel the applicant’s visa pursuant to s 501(3A) was affected by jurisdictional error because it relied on historical convictions already the subject of an earlier cancellation decision. However, having regard to the terms of s 501CA and the circumstances of the present applicant, ground 1 must be dismissed. I have determined that the applicant has not established jurisdictional error in relation to ground 2. The consequence is that the application must be dismissed with costs.

2. THE BACKGROUND

7. The relevant factual matters are not in dispute and are conveniently set out in the Minister’s written...