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

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 28 February 2022
• Neutral Citation: [2022] FCAFC 34
• Date: 28 February 2022

Federal Court of Australia

XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 34

Appeal from:	XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138
File number:	NSD 1092 of 2021
Judgment of:	THAWLEY, CHEESEMAN AND O’SULLIVAN JJ
Date of judgment:	28 February 2022
Date of publication of reasons:	11 March 2022
Catchwords:	MIGRATION – appeal from decision dismissing application for judicial review of decision of the Administrative Appeals Tribunal – where Tribunal affirmed decision of the delegate of Minister not to revoke mandatory cancellation of visa – whether primary judge erred in failing to find the Tribunal made findings for which there was no evidence – whether appellant had in fact made a submission forming an evidentiary basis for Tribunal’s conclusion – whether primary judge erred in failing to find that the Tribunal acted on a misunderstanding of applicable law – whether primary judge erred in failing to find that the Tribunal’s decision was infected by illogicality, irrationality or unreasonableness – whether Tribunal’s assessment of appellant’s risk of recidivism was illogical – appeal allowed on the basis that the Tribunal made material findings for which there was no basis in the material before it
Legislation:	Migration Act 1958 (Cth) ss 499(1), 501(3A) 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:	Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403; [2021] HCA 41 MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17 XSLJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 939
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	52
Date of hearing:	28 February 2022
Counsel for the Appellant:	Mr D Hooke SC (written submissions) and Dr J Donnelly (written submissions and oral argument)
Solicitor for the Appellant:	Zafiri Lawyers
Counsel for the First Respondent:	Mr G Johnson
Solicitor for the First Respondent:	Minter Ellison
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		NSD 1092 of 2021
BETWEEN:	XSLJ Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	THAWLEY, CHEESEMAN AND O’SULLIVAN JJ
DATE OF ORDER:	28 FEBRUARY 2022

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the primary judge be set aside and in lieu thereof:

   1. a writ of certiorari issue quashing the decision of the second respondent of 14 April 2021;

   2. remit the matter to the second respondent, differently constituted, for determination according to law;

   3. the first respondent pay the applicant’s costs as agreed or assessed.

3. The first respondent pay the appellant’s costs of the appeal as agreed or assessed.

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

REASONS FOR JUDGMENT

Ex tempore

(Revised from transcript)

THE COURT:

OVERVIEW

1. The appellant is a New Zealand citizen who came to Australia on 13 December 2003 aged 24. On 10 August 2018, a delegate of the Minister cancelled the appellant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501(3A) of the Migration Act 1958 (Cth) (the Act). This was because the delegate was satisfied that the appellant had a substantial criminal record and that he 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 a Territory.

2. The appellant made representations to the Minister seeking revocation of the cancellation of his visa. On 21 January 2020, a delegate of the Minister refused to revoke the visa cancellation.

3. The appellant sought review of that decision in the Tribunal. The Tribunal affirmed the delegate’s decision on 14 April 2020. The Tribunal’s decision was quashed on judicial review and a writ of mandamus was issued pursuant to orders made by this Court in its original jurisdiction.

4. The Tribunal conducted a second hearing on 22 and 23 February 2021. The parties relied upon new statements of facts issues and contentions (SFICs) for the second Tribunal hearing. On 14 April 2021 the Tribunal again affirmed the decision under review: XSLJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 939 (hereafter “T”).

5. The appellant again brought judicial review proceedings in this Court, advancing four grounds of review. Each ground was rejected by the primary judge. The appellant now appeals from the primary judge’s order dismissing his application: XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138 (hereafter “J”). The appellant contends the primary judge erred in connection with three of the four grounds argued.

6. The background is comprehensively set out by the primary judge at J[4] to [65]. It is unnecessary to repeat it here. It is also unnecessary to summarise the decisions of the Tribunal and the primary judge. Reference is made to those decisions to the extent necessary to address the grounds of appeal.

7. For the reasons which follow, Ground 1 of the appeal is made out. The primary judge ought to have found jurisdictional error on the part of the Tribunal on the basis that it made material findings which were not open on the material before it. Grounds 2 and 3 are not made out.

GROUND 1

8. The appellant contends that the primary judge erred in failing to find that the Tribunal made findings for which there was no evidence. Ground 1 revolves around the Tribunal’s reasons at T[112] to [114] (appellant’s emphasis):

[112] The prospect of a future visa cancellation proceeding arising from any further offending is also contended to represent a “significant deterrent against the Applicant engaging in future criminality [...]” The main point seems to be that the difficulties he has faced with the current attack on his visa status has, in itself, had a deterrent effect on his future risk of recidivism.

[113] To properly assess any weight attributable to this contention, it is first necessary to understand the context in which it is made. The Applicant now claims to have experienced some sort of shock or epiphany arising from the reality...