FEDERAL COURT OF AUSTRALIA

Wahed v Minister for Home Affairs [2018] FCA 1336

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The applicant is a citizen of Lebanon who first arrived in Australia in 1998. He held a Class BB Subclass 155 Five Year Resident Return visa (“visa”). On 22 November 2016 a delegate of the first respondent (“Minister”) decided to cancel the applicant’s visa. That decision (“cancellation decision”) was made pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“Act”).

2    Section 501(3A) is in the following terms:

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 or    paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); 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.

3    Where a cancellation decision is made under s 501(3A) of the Act, s 501CA(3) requires that the Minister give notice of the decision to the person whose visa has been cancelled and invite the person to make representations about revocation of the cancellation decision. Section 501CA(4) of the Act empowers the Minister to revoke a cancellation decision where such representations have been made. Section 501CA(4) provides that:

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.

4    Consequent upon representations from the applicant, on 12 October 2017, a delegate of the Minister made a decision under s 501CA(4) not to revoke the cancellation decision (“non-revocation decision”).

5    By an application made on 19 October 2017 to the second respondent, the Administrative Appeals Tribunal (“Tribunal”), the applicant sought review by the Tribunal of the non-revocation decision. Section 500(1)(ba) of the Act empowers the Tribunal to review “decisions of a delegate of the Minister under subsections 501CA(4) not to revoke a decision to cancel a visa”.

6    By its decision of 4 January 2018, the Tribunal determined to affirm the non-revocation decision.

7    It was not in contest before the Tribunal that the applicant did not pass the character test specified by s 501(6)(a) of the Migration Act. Accordingly, the only basis upon which the cancellation decision could be revoked is that specified in s 501CA(4)(b)(ii) “that there is another reason why the [cancellation] decision should be revoked”. The Tribunal concluded that there was not such a reason. The basis for that conclusion is adequately summarised in the submissions of the Minister as follows:

•    there is a threat of harm (or risk of danger) to the Australian community if the cancellation decision were to be revoked because the evidence suggested there was a ‘medium’ chance of the applicant reoffending. Such a situation would not be acceptable to the Australian community: [97]–[101];

•    the threat to the Australian community outweighed factors in favour of revocation such as the applicant’s connection to Australia (the Tribunal concluded that the applicant also had ties to Lebanon and had travelled there several times in recent years, including in 2008 and 2009): [89]–[94];

•    revocation was not in the best interests of the applicant’s minor Australian children because the evidence demonstrated there was an intervention order in place preventing him from having access to them and he had ‘lost contact’ with them. Further, there was no evidence from the children or their mother that suggested it would be in their best interests for the cancellation decision to be revoked: [107]–[118]; and

•    the Tribunal did not accept on the evidence that the applicant was bisexual and therefore would encounter problems in Lebanon for that reason: [119]-[128].

8    At the hearing before the Tribunal the applicant was legally represented. He remained represented at the time that an application to this Court was made under s 476A of the Act seeking that the decision of the Tribunal be quashed.

9    The applicant’s application raised a single ground as follows:

The decision of the [Tribunal] under s 500(1)(ba) of the Act to affirm the refusal of the [Minister] to revoke the cancellation of the applicant's visa under s 501(3A) of the Act was invalid because there was no decision under s 501(3A) of the Act which was capable of being revoked under s 501CA.

10    That ground was particularised and, relevantly, asserted that the cancellation decision and the consequent detention of the applicant “rendered s 501(3A) a punitive provision and therefore an unlawful interference by [the Minister] in the Judicial Power of the Commonwealth in Chapter III of the Constitution of Australia”.

11    By the time that the applicant’s application came on for hearing, the applicant was no longer legally represented. The applicant appeared unrepresented but assisted by an interpreter.

12    The applicant indicated that he pressed his challenge of the validity of s 501(3A) of the Act. That indication raised for consideration whether, in the absence of notices under s 78B of the Judiciary Act 1903 (Cth) (“Judiciary Act”) having been served, the Court should proceed to hear the matter. The Minister contended that there was no impediment to the Court hearing the matter because the constitutional issued raised by the application was not real and substantial. In support of that contention the Minister relied on the following observation made by Gageler J in Re Culleton (2017) 91 ALJR 302 at [29] as follows:

Section 78B of the Judiciary Act does not, in my opinion, prevent me from dismissing so much of the summons as seeks to give effect to Senator Culleton's attempt to raise the constitutional objection to jurisdiction. French J made the point in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [(1999) 95 FCR 292 at [14]]that s 78B "does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be". To give rise to the obligation not to proceed without notice a cause pending in court must truly "involve" a matter arising under the Constitution or involving its interpretation. As Toohey J stated in Re Finlayson; Ex parte Finlayson [(1997) 72 ALJR 73 at 74], in a passage quoted with approval by Gummow, Hayne and Callinan JJ in Glennan v Commissioner of Taxation [(2003) 77 ALJR 1195 at [14]], "[I]n terms of s 78B, a cause does not 'involve' a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does". In short, the constitutional point must be real and substantial.

13    The basis for the Minister’s contention that no real or substantial constitutional point has been raised was that seven justices of the High Court had unanimously decided in Falzon v Minister for Immigration and Border Protection (2018) 92 ALJR 201 that s 501(3A) of the Act was not invalid for the reason that it conferred the judicial power of the Commonwealth on the Minister and thereby infringed Chapter 3 of the Constitution.

14    At the hearing, I formed the view that the constitutional validity point sought to be agitated by the applicant had been conclusively answered adversely to the applicant: Falzon at [39], [56], [63] (Kiefel CJ, Bell, Keane and Edelman JJ) and [87]-[89] (Gageler and Gordon JJ). In those circumstances, I did not regard the applicant as having raised a “real and substantial” constitutional point. Consistently with the observations made by Gageler J in Re Culleton at [29], I determined that the terms of s 78B of the Judiciary Act did not preclude the continuation of the hearing.

15    The applicant made no submissions in support of his ground of his application contesting the validity of s 501(3A) of the Act. I note that the Tribunal was not concerned directly with the review of a decision made under s 501(3A), but rather, was concerned with the review of a non-revocation decision made under s 501CA(4). In those circumstances, there may well have been a question as to how the validity of s 501(3A) could have impacted upon the jurisdiction exercised by the Tribunal. However, accepting in favour of the applicant that such an impact was possible, the ground of the application must be dismissed for the reason that I am bound in Falzon to conclude that s 501(3A) is not invalid.

16    There were other submissions made by the applicant. Those submissions extended well beyond the bounds of the applicant’s ground of appeal. Unsurprisingly, the applicant raised a number of matters contesting the merit of the cancellation decision. The applicant said that he had lived in Australia for the last 20 years and that Australia was his country, his whole life and a country that he liked. The applicant said that he has children in Australia and that he ought not be separated from his children. He asked for a further chance. He indicated his preparedness to give an undertaking that he would no longer breach the law. The applicant also said that he would not be able to live in Lebanon. He raised his bisexuality as the reason why he would be persecuted including by his own family if he were returned to Lebanon.

17    As the Minister correctly contended, all the matters raised by the applicant went to the merits of the cancellation decision and were addressed by the Tribunal.

18    The applicant’s submissions failed to point to any error made by the Tribunal, let alone any jurisdictional error. No jurisdictional error is apparent from the reasons of the Tribunal.

19    The applicant did not seek leave to raise any new grounds not raised by his application and nothing raised by the submissions made by the applicant suggested that any additional ground was available to be raised.

20    For those reasons the application must be dismissed. There being no basis for concluding that costs should not follow the event, it is appropriate that the applicant pay the Minister’s costs of the application.

Associate:

Dated:    31 August 2018