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

ORDERS

THE COURT ORDERS THAT:

1. The application dated 19 July 2021 be dismissed.

2. The applicant pay the first respondent’s costs, to be assessed by a Registrar if not agreed.

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

REASONS FOR JUDGMENT

SC DERRINGTON J:

1. Ms Walker is a citizen of New Zealand who was last granted a Class TY Subclass 444 Special Category (Temporary) visa on arrival in Australia in July 2011. She seeks judicial review of the decision of the Administrative Appeals Tribunal made on 15 June 2021 to affirm the decision made by a Delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on 23 March 2021 not to revoke the mandatory cancellation of that visa.

2. Ms Walker’s sole ground of appeal is that the Minister’s and the Tribunal’s decision was affected by jurisdictional error ‘in failing to exercise or properly and/or reasonably exercise its discretion in relation to section 501CA(4) of the Migration Act 1958 (Cth), specifically s 501CA(4)(b)(ii), “that there is another reason why the original decision should be revoked”.’

3. Ms Walker sought, and was granted, leave to rely on revised particulars of her application contained in written submissions filed on 29 September 2021. The Minister did not oppose the grant of leave.

4. For the reasons that follow, the application must be dismissed.

5. Section 501(3A) of the Act provides that 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 of the operation of:

(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c);

. . .; and

(b) the person is 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.

6. Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more.

7. Section 501CA of the Act relevantly provides that:

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

8. Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the exercise of those functions or powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 8 March 2021, the Minister made a direction titled “Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 90) which came into force on 15 April 2021.

9. Paragraph 5.2 of Direction 90 provides as follows:

5.2 Principles

The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under s 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under s 501 or section 501CA of the Act are identified in Part 2.

1. Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

2. Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

3. The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

4. Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding limited stay visas, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

5. Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstance, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong...