LNMR v Minister for Immigration, Citizenship and Multicultural Affairs

1. A writ of certiorari issue to quash the decision made by the second respondent dated 17 October 2023 to affirm the decision made by a delegate of the first respondent not to revoke the mandatory cancellation of the applicant's class BA subclass 200 Refugee and Humanitarian (permanent) visa.
2. A writ of mandamus requiring the second respondent to determine the application made to it for review of the delegate's decision according to law.
3. The first respondent pay the applicant's costs, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

FEUTRILL J: 1 The applicant seeks judicial review of a decision of the second respondent (Administrative Appeals Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to revoke the cancellation of the applicant's visa under s 501CA(4) of the Migration Act 1958 (Cth). The Minister has conceded that the Tribunal failed to consider the nature and duration of the applicant's links to his former partner, Ms Aimee McQuillan, as was required by cl 8.33 and cl 8.34 of Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA as made by the Minister under s 499 of the Act. 2 The applicant is a citizen of Sudan. He first arrived in Australia in 2003 at the age of 12 and has continuously lived in Australia since his arrival. He was formerly the holder of a class BA subclass 200 Refugee and Humanitarian visa until it was cancelled. The applicant committed numerous crimes whilst in Australia and has been sentenced to several terms of imprisonment, as a consequence of which, his visa was mandatorily cancelled on 7 April 2015 under s 501(3A) of the Act. After his visa was cancelled, he made representations to the Minister, as was his right under s 501CA(3), and, after making those representations, a delegate of the Minister was not satisfied that the applicant passed the character test and was not satisfied that there was another reason why the cancellation decision should be revoked. The applicant then sought a review of the delegate's decision under s 500(1)(ba) of the Act, which was heard before a member of the Tribunal, who made a decision on 17 October 2023 to affirm the delegate's decision and published reasons for that decision on 3 November 2023. 3 The applicant then applied to this Court for judicial review of the Tribunal's decision, and that is the matter that has come before me today. Notwithstanding the concession of the Minister that orders should be made, because the application involves the exercise of judicial power, it is necessary, first, for the Court to be satisfied that the exercise of judicial power is appropriate, and, second, it may be necessary to give brief reasons relating to the exercise or non-exercise of that power: Irwin v Military Rehabilitation & Compensation Commission [2009] FCAFC 33; 174 FCR 574 at [12]-[16]. It is in accordance with that authority and others that I consider that brief reasons should be given as to why I accept that such power should be exercised in this case. 4 The Tribunal was obliged to take into account the applicant's representations as a whole, including any material of which the Tribunal was aware that was relevant to one of the considerations it was obliged to take into account by s 499 of the Act and the terms of Direction 99. A failure to consider and take into account such material may result in jurisdictional error: Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 at [64]-[68]; FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6]; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [22]-[27]. 5 In this case, the applicant's representations to the Tribunal included a letter from Ms McQuillan that provided evidence of a romantic relationship between her and the applicant, which had ended, and an ongoing and possible future relationship of mutual support. That was material of which the Tribunal was aware that was relevant to assessing the strength, nature and duration of the applicant's ties to Australia. As such, the Tribunal was obliged by s 499 of the Act and the terms of Direction 99, in particular cl 8.3(3) and cl 8.3(4), to take into account in determining the applicant's application for review. The Tribunal's failure to do so is evident from paras [58] to [62] of its reasons for decision of 3 November 2023. 6 For those reasons I am satisfied it is appropriate that the Court make orders in terms of paras 1, 2 and 4 of the minute of consent orders that the Minister lodged with the Court on 22 July 2024. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.