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

• Jurisdiction: Australia Federal only
• Judgment Date: 25 May 2021
• Neutral Citation: [2021] FCA 545
• Court: Federal Court
• Date: 25 May 2021

Federal Court of Australia

Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545

Appeal from:	Application for judicial review: Zyambo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2473
File number:	QUD 270 of 2020
Judgment of:	DERRINGTON J
Date of judgment:	25 May 2021
Catchwords:	MIGRATION – visa cancelled on character grounds – whether any error in decision of Tribunal to refuse to revoke cancellation decision – whether decision-maker entitled to rely on same term of imprisonment which founded earlier cancellation of visa
Legislation:	Migration Act 1958 (Cth) ss 501, 501CA
Cases cited:	Ali v Minister for Home Affairs (2020) 380 ALR 393 Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595 CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 CQG15 v Minister for Immigration & Border Protection (2016) 253 FCR 496 DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 EHF17 v Minister for Immigration and Border Protection (2019) 377 ALR 669 Gill v Minister for Immigration & Border Protection (2017) 250 FCR 309 Minister for Immigration and Border Protection v Makasa [2021] HCA 1 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Mouflih v Minister for Home Affairs (2019) 168 ALD 148 Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 Ogbonna v Minister for Immigration and Border Protection (2018) 261 FCR 385 Palu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1736
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	49
Date of last submissions:	4 May 2021
Date of hearing:	21 April 2021
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	Mr JD Byrnes
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		QUD 270 of 2020
BETWEEN:	KONDANANI ZYAMBO Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	DERRINGTON J
DATE OF ORDER:	25 May 2021

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

DERRINGTON J:

1. The applicant, Mr Zyambo, seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 27 July 2020. By that decision, the Tribunal affirmed the determination of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) not to revoke the mandatory cancellation of Mr Zyambo’s visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).

2. Although the hearing of this matter was previously adjourned for an extended period to allow Mr Zyambo to obtain representation or pro bono assistance, to date he has been unable to do so. As a consequence, he has not provided any written submissions in support of the grounds on which he seeks to overturn the delegate’s decision. On that basis, the Minister’s submissions have been carefully drafted to identify for the Court those matters which appear most relevant to the applicant’s grounds and appreciation is expressed for that assistance.

Background

3. Mr Zyambo is a citizen of Zambia and was 35 years old at the time of the Tribunal’s decision. He was nine years old in 1995 when he moved with his parents and sister to Australia. The most recent visa granted to him was a Class BW Sub-class 856 Employer Nomination Scheme (Permanent) visa.

4. Since 1995, Mr Zyambo has lived in Australia other than for a period during which he lived in Zambia (being from around January 2003 to March 2004).

5. Unfortunately, his life has involved the regular use of drugs to which he has become addicted. Initially he was addicted to cannabis and, subsequently, to methamphetamine.

6. Perhaps as a result of his addictions, he now has a long and serious criminal history and has been convicted of at least 89 offences. The substantive part of that criminal history is accurately set out in paragraph 7 of the Minister’s written submissions to this Court, and I gratefully adopt the summary which is as follows:

(a) in October 2002, the Applicant was caught in possession of a knife;

(b) in November 2002, he was caught in possession of “dangerous drugs”;

(c) in October 2004, the Applicant was caught in possession of dangerous drugs and utensils or pipes;

(d) in November 2004, the Applicant committed a trespass and contravened a direction or requirement;

(e) unlawful use of motor vehicles, aircraft or vessels in July 2006 (and September 2006);

(f) stealing and unlawful entry of vehicle for committing an indictable offence at night in company in September 2006;

(g) six offences of unlawful entry of vehicle for committing indictable offences between 31 August 2006 and 25 September 2006;

(h) on 14 January 2008 (after release from his first sentence of imprisonment), the Applicant was charged with offences related to possession, supply and trafficking of dangerous drugs. While on bail, he breached his bail conditions (while still on a suspended sentence);

(i) in September 2008, the Applicant was convicted of supplying dangerous drugs (as well as other offences), with a sentence of six months imprisonment;

(j) after release from further imprisonment, in August 2009, the Applicant was caught in possession of dangerous drugs. In December 2009, he was convicted and sentenced to three months imprisonment (suspended) so that he could undergo drug rehabilitation (although later this order was vacated and he was required to serve the sentence of imprisonment);

(k) in 2013, the Applicant was convicted of “fraud – dishonestly obtains property from another” (although the Tribunal had accepted the Applicant’s explanation in this respect);

(l) after having resumed the use of methamphetamine, the Applicant committed six offences of trespass between October 2014 and May 2015 (and eight such offences on 2 May 2015);

(m) between 3 and 6 November 2014, the Applicant committed “burglary and commit indictable offence” (with the stolen items swapped for accommodation or drugs);

(n) between November 2014 and June 2015, the Applicant was sentenced on four occasions and sentenced to short periods of imprisonment;

(o) in September 2015, the Applicant was sentenced for various offences, such as receiving tainted property, “fraud...