Tanehohaia v Minister for Immigration, Citizenship and Multicultural Affairs

COLVIN J: 1 Mr Troy Tanehohaia is a New Zealand citizen who moved to Australia in 2012. In 2021 he was sentenced to a four year term of imprisonment. His visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). His request that his visa be reinstated was refused. Mr Tanehohaia brought a successful review application in the Administrative Appeals Tribunal and his visa was reinstated. After that, in May 2014, Mr Tanehohaia was released on parole. 2 In September 2024, the Assistant Minister, then made a decision to exercise the power under s 501BA of the Migration Act to set aside the Tribunal's decision and cancel Mr Tanehohaia's visa. For the purposes of the Act, the Assistant Minister is the Minister: Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391; and Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; (2016) 249 FCR 275 at [19]-[21] (Perry J). The decision was made on the basis that national interest considerations outweighed other factors, including the best interests of minor children and Mr Tanehohaia's ties to Australia. In reaching that conclusion, the Assistant Minister reasoned on the basis that Mr Tanehohaia was still in prison and consequently did not take account of the circumstance that Mr Tanehohaia had been living in the community under parole supervision. 3 Mr Tanehohaia sought review of the Assistant Minister's decision under s 501BA. Amongst other things, he claimed that the Assistant Minister's decision was irrational, illogical and unreasonable as to the factual finding to the effect that Mr Tanehohaia was still in prison. It was claimed that the error had material consequences for the decision because there was a failure to have regard to the fact that Mr Tanehohaia had been living in the community and, amongst other things, he was no longer separated from his children. Consequently, so it was claimed, the decision had been based on dated information that was wrongly treated as current. 4 The Minister as respondent to the proceedings accepts that the decision is affected by jurisdictional error. The Minister accepts that on 26 July 2024 (some months before the decision) officers of the department learned that Mr Tanehohaia was no longer in prison. It is further accepted that by application of the reasoning in Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11 at [17]-[20] that the Assistant Minister had constructive knowledge of that fact and that the findings by the Assistant Minister which were premised on Mr Tanehohaia being in prison were not reasonably open. It is also accepted that the errors were material in the sense described in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12. 5 On the basis of the above matters, the parties jointly propose that the Court should order the issue of a writ of certiorari quashing the decision of the Assistant Minister and that the respondent pay Mr Tanehohaia's costs of the proceedings as agreed or taxed. 6 As I explained in VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [3]-[5]: (1) 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 error. Further, there is a public interest that requires the Court to specify both 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; (2) it is appropriate that due respect be afforded to a decision-maker by communicating the reasons for the grant of public law relief; and (3) in many instances where public law relief is granted, the orders will affect the exercise of powers which have significance beyond the interests of the parties before the Court and for that reason the Court should make plain why it has granted relief. 7 As to the key factual matter concerning when officers in the department became aware that Mr Tanehohaia was no longer in prison, I have received as an exhibit an email chain which shows that position was communicated on 26 July 2024. I am satisfied as to the legal basis upon which the orders are proposed. 8 For those reasons, I have made orders in the terms proposed by the parties. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.