Manuel v Minister for Immigration, Citizenship and Multicultural Affairs

1. A writ of certiorari be issued quashing the decision of the second respondent dated 15 June 2022.
2. A writ of mandamus directed to the second respondent be issued requiring it to determine the application for review of the decision of a delegate of the first respondent dated 23 March 2022 according to law.
3. The first respondent is to pay the applicant's costs fixed in the amount of $4,561.32. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCEVOY J: 1 In this proceeding the applicant, Brett Terry Manuel seeks judicial review pursuant to s 476A of the Migration Act 1958 (Cth) of a decision of the Administrative Appeals Tribunal which affirmed a decision of a delegate of the Minister not to revoke the mandatory cancellation of the applicant's visa pursuant to s 501CA(4)(b)(ii) of the Act. The parties have promoted, by consent, orders that a writ of certiorari be issued quashing the decision of the Tribunal dated 15 June 2022 and a writ of mandamus directed to the Tribunal be issued requiring it to review the delegate's decision according to law. 2 As Colvin J explained in VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [3]-[5], even where the proper contradictor to an application for judicial review consents to the grant of relief, the Court must be satisfied that there is an error. There is a public interest that requires the Court to specify the error and its satisfaction that an error has occurred which justifies the proposed relief being granted within the public law jurisdiction of the Court: Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FLR 323 at 327-328 [12] (French J). 3 The applicant's complaint in this proceeding is that the Tribunal fell into error by failing to consider evidence relevant to its determination of whether there was "another reason" to revoke the mandatory cancellation of the applicant's special category (subclass 444) visa pursuant to s 501CA(4)(b)(ii) of the Act. 4 The parties have jointly submitted, in effect, that the Tribunal's decision dated 15 June 2022 is affected by jurisdictional error. Specifically they submit that the relevant evidence the Tribunal failed to consider comprised: (a) a statement dated 23 June 2021 from the applicant's most recent partner referred to by the Tribunal as "Ms TV" which stated she had "forgiven" the applicant and wanted him by her side as her husband; (b) a statement from the applicant dated 5 May 2022 in which the applicant stated he was still in touch with Ms TV; and (c) a psychological assessment dated 5 May 2022 which recorded that the applicant spoke to Ms TV and her five children "daily". 5 The parties jointly submit that the Tribunal's failure to consider this evidence was material to the outcome of the review because the evidence was relevant to the Tribunal's consideration of paragraphs 8.3 (best interests of minor children) and 9.3 (impact on victims) of Ministerial Direction. 90 - visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA. The parties submit that had the Tribunal taken this evidence into account, it could realistically have come to a different decision: Nathanson v Minister for Home Affairs (2022) 403 ALR 398 at 401 [2] (Kiefel CJ, Keane and Gleeson JJ). 6 Thus the parties jointly submit that it is appropriate for the Court to make the orders that have been agreed quashing the decision of the Tribunal and requiring the review to be determined according to law. 7 The Court notes the concessions made by the Minister that these joint submissions represent. Further, the Court is satisfied, for the reasons identified by the parties and set out above, that there has been jurisdictional error on the part of the Tribunal and that the application should be granted. 8 It follows that there will be orders substantially in the terms proposed by the parties, including that the first respondent will pay the applicant's costs agreed in the sum of $4,561.32. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.