Zaoui v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The applicant is 48 years old. He is sometimes known as "Sami La Mound". He was born in Algeria and came to Australia on 24 December 1988. He has, therefore, lived in this country for 23 years. He was married but is now divorced. He had four children with his former wife. Those children are now aged 20, 19, 16 and 13 respectively. The applicant claims to be in a longstanding relationship with a lady who is of Aboriginal descent. The applicant has an extensive criminal history, a copy of which is attached to these Reasons for Judgment as Attachment "A". 2 On 4 February 2011, the Department of Immigration and Citizenship (the Department) sent a notice of intention to consider cancellation of visa under s 501(2) of the Migration Act 1958 (Cth) (the Act) to the applicant giving him notice of the possibility that the respondent (the Minister) or a delegate of the Minister might cancel his visa. At the time that letter was sent, the applicant was the holder of a Class BB subclass 155 visa granted by the Department on 20 August 2008. 3 On 27 April 2011, a delegate of the Minister sent a notice to the applicant cancelling his visa. In that notice, the applicant was alerted to his right to seek a review of that decision in the Administrative Appeals Tribunal (the Tribunal). The applicant then sought a review in the Tribunal of the decision made by the delegate to cancel his visa. The Tribunal conducted a hearing on 23 and 24 June 2011. The applicant was represented by a lawyer at that hearing. 4 On 26 July 2011, the Tribunal delivered its decision on the applicant's application. The Tribunal affirmed the decision of the delegate. The Reasons for Decision of the Tribunal are dated 26 July 2011. The decision was notified to the applicant on 28 July 2011. 5 The applicant was dissatisfied with the decision of the Tribunal. 6 On 29 August 2011 the applicant filed a document styled "Notice of Appeal" in this Court. The form of that document leaves a lot to be desired and does not conform with the requirements of the Federal Court Rules. The substantive content of the Notice of Appeal is as follows. Questions of law 1. Failure to consider relevant evidence. 2. Failure to give proper weight to and to properly consider relevant considerations. 3. The decision maker ignored relevant material. 4. Gave too much weight to irrelevant considerations. 5. The Tribunal failed to consider all substantial claims and information put forward by the applicant. 6. The decision was unreasonable. [*Delete this section if you are not asking the Court to make findings of fact. The Court can make findings of fact only in limited circumstances - see section 44(7) of Administrative Appeals Tribunal Act 1975] Findings of fact that the Court is asked to make 1. That the Criminal history of the Applicant was not as set out in the decision in that the Applicant did not "engage in criminal activity less than three years after arrival". 2. The applicant did not receive tow [sic] consecutive sentences but instead received concurrent sentences. 3. The applicant and his partner have not lived apart for much of their relationship 4. The applicant saw his children in 2008 not in 2009. Orders sought 1. That the decision of the Administrative Appeals Tribunal be set aside and that the applicant's visa Not be cancelled. Grounds relied on 1. If the Applicant was deported from Australia, the harm caused to the Applicant's four children all of whom are Australian citizens would be severe and unreasonable. 2. The harm caused to the applicants partner who is an Aboriginal woman with a mental illness would be unreasonable and harsh. 3. The Applicant can show that he has good prospects of rehabilitation and that he is not a risk of harm to the Australian community 7 The applicant cannot appeal to this Court from the Tribunal's decision. The Tribunal's decision is either a privative clause decision or a purported privative clause decision (as to which see the definition of those expressions in s 5(1) of the Act). Section 483 of the Act provides: 483 Section 44 of the Administrative Appeals Tribunal Act 1975 Section 44 of the Administrative Appeals Tribunal Act 1975 does not apply to privative clause decisions or purported privative clause decisions. 8 Notwithstanding the terms of s 474(1) of the Act, s 476A invests this Court with limited original jurisdiction if (inter alia): the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500. 9 Accordingly, s 476A permits a challenge to be made in this Court to the Tribunal's decision in respect of the applicant made on 26 July 2011. In the event that such a challenge is made within the time limited by s 477A of the Act, the jurisdiction of the Federal Court is the same as the High Court under s 75(v) of the Constitution (see s 476A(2) of the Act). 10 The applicant's "Notice of Appeal" was received by the Registry of the Court on 22 August 2011 which is within the time limit laid down by s 477A of the Act, assuming that the Tribunal's decision was ever properly notified to the applicant in the manner required by s 477A. On the assumption that that notification was given to the applicant in the manner required by s 477A (about which there was no evidence), the applicant's application was, therefore, "made" within 28 days of the actual notification of the decision and was thus made within the time specified in s 477A. The fact that the Registry processed the document at a later date does not matter. 11 In any event, the Minister did not suggest that the applicant was out of time. 12 On the contrary, when the matter came before me on 28 September 2011, the Minister's solicitor submitted that I should make an order that the applicant's "Notice of Appeal" be deemed to be an application under s 476A(1)(b) of the Act. I made an order to that effect on that day. In addition, I fixed the matter for hearing today and made other directions designed to ready the matter for hearing. 13 One of the directions which I made on 28 September 2011 was that the applicant file and serve an Amended Application giving full particulars of each ground of review relied upon. I also ordered that he file and serve by 2 December 2011 a written outline of submissions and list of authorities. The applicant did not comply with either of those directions. However, when the matter was called on this morning, he handed to me a letter dated 5 December 2011, which I have marked as "MFI-1, which contains the submissions which he seeks to make in support of his judicial review application. 14 The applicant has appeared before me today and represented himself. He has amplified and supplemented the written material in his letter (MFI-1) by making oral submissions in support of his application. It is reasonably clear from the subject matter of the Notice of Appeal and from the submissions, both written and oral, which the applicant has made, that his attack on the decision of the Tribunal is that the Tribunal committed jurisdictional error in dealing with his matter. I propose to deal with his application on that basis.