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

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 22 September 2021
• Neutral Citation: [2021] FCA 1138
• Date: 22 September 2021

Federal Court of Australia

XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138

Appeal from:	XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 939 (14 April 2021)
File number:	NSD 399 of 2021
Judgment of:	HALLEY J
Date of judgment:	22 September 2021
Catchwords:	MIGRATION – cancellation of special category (subclass 444) visa of New Zealand citizen pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Act) – decision not to revoke cancellation pursuant to s 501CA(4) of the Act – where primary considerations of protection and expectations of the Australian community outweighed considerations of the best interests of minor children and the applicant’s ties to the community and extent of impediments if removed – procedural fairness – no evidence – misunderstanding of applicable law – irrationality, illogicality and/or unreasonableness – materiality – application for judicial review dismissed.
Legislation:	Migration Act 1958 (Cth) ss 476A, 501, 501CA Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Cases cited:	Applicants M1015/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309 ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 Australian Postal Corporation v D’Rozario (2014) 222 FCR 303; [2014] FCAFC 89 Bale v Minister for Immigration, Migrant Services and Multicultural Affairs [2020] FCA 646 BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292; [2018] FCAFC 94 CGA15 v Minister for Home Affairs (2019) 268 FCR 362; [2019] FCAFC 46 CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58 DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 DQM18 v Minister for Home Affairs (2020) 278 FCR 529; [2020] FCAFC 110 FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 FYBR v Minister for Home Affairs (2019) 272 FCR 454; [2019] FCAFC 185 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Citizenship v SZQKB (2012) 133 ALD 495; [2012] FCA 1189 Minister for Immigration and Citizenship v SZRKT and Another (2013) 212 FCR 99; [2013] FCA 317 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 Navoto v Minister for Home Affairs [2019] FCAFC 135 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 R v Ibrahim (unreported, New South Wales Court of Criminal Appeal, Sully J and Bell AJ, 4 September 1996) SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	175
Date of hearing:	16 August 2021
Counsel for the Applicant:	Dr J Donnelly
Solicitor for the Applicant:	Scott Calnan, Lawyer
Counsel for the First Respondent:	Mr G Johnson
Solicitor for the First Respondent:	MinterEllison
Counsel for the Second Respondent:	The Second Respondent submitted to any order of the Court, save as to costs

ORDERS

		NSD 399 of 2021
BETWEEN:	XSLJ Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	HALLEY J
DATE OF ORDER:	22 September 2021

THE COURT ORDERS THAT:

1. The originating application be dismissed.

2. The applicant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

HALLEY J:

INTRODUCTION

1. This is an application made under s 476A(1)(b) of the Migration Act 1958 (Cth) (Act). The applicant is seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 April 2021, affirming a decision of a delegate of the first respondent (Minister) not to revoke the mandatory cancellation of the applicant’s visa pursuant to s 501CA(4) of the Act.

2. Section 476A(1)(b) of the Act gives the Court jurisdiction to review the decision of the Tribunal. Section 476A(2) provides that the jurisdiction is the same as the jurisdiction of the High Court pursuant to s 75(v) of the Constitution. Consistently with that conferral of jurisdiction, the relief sought by the applicant in his originating application is a writ of certiorari quashing the decision of the Tribunal and a writ of mandamus remitting the matter to the Tribunal for determination according to law.

3. For the reasons that follow, I find that the Tribunal did not err in affirming the decision of the Minister’s delegate to refuse to revoke the mandatory cancellation of the applicant’s visa pursuant to s 501CA(4) of the Act.

BACKGROUND

4. The applicant is a male citizen of New Zealand who was born in New Zealand on 4 July 1979.

5. He first arrived in Australia from New Zealand in December 2003 when he was 24 years old.

6. Between his original arrival and the date of the Tribunal’s decision, the applicant resided in Australia for 17 years and three months. He spent approximately 32 days outside the country during that period, returning to New Zealand briefly on a handful of occasions.

7. It is accepted that the applicant held a Class TY (subclass 444) Special Category (Temporary) Visa (visa) on his most recent arrival into Australia in 2018.

8. On 10 August 2018, the visa was mandatorily cancelled pursuant to s 501(3A) of the Act. Section 501(3A) provides:

(3A) The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because...