In Cotterill v Minister for
Immigration and Border Protection [2016] FCAFC 61 (14 April 2016) the
Full Court allowed the appellant’s appeal and set aside the orders of the
primary judge.
The appellant was born in England in 1943 and migrated to
Australia with his parents when he was seven years old. Under the Migration
Act 1958 (Cth) (the Act), the appellant was taken to have been granted an “absorbed
person” visa which allowed him to stay in Australia indefinitely. The visa was subject to the provisions of the
Act including the discretion of the Minister to cancel a visa on character grounds
under section 501 of the Act.
In 2012 the appellant pleaded guilty to certain sexual
offences and was sentenced to 12 months imprisonment. In 2015, the Minister cancelled the appellant’s
absorbed person visa pursuant to section 501(2) of the Act.
The primary judge dismissed the appellant’s application for
judicial review.
The Full Court held that the Minister’s decision involved
jurisdictional error because the Minister had failed to take into account the
relevant consideration that a possible consequence of that decision was that
the appellant would face prolonged and possibly indefinite detention because of
his ill-health.
There was consideration and discussion of the Full Court’s
judgment in NBMZ v Minister for Immigration & Border Protection (2014) 220
FCR 1 which concerned section 501(1) of the Act. Justices Kenny and Perry said the NBMZ is authority for the proposition
that, in exercising power under section 501(1) or (2), the Minister must take
into account the legal consequences of a decision under the Act. Kenny and Perry JJ further explained: ‘There
is also another difference between this case and NBMZ, but again it does not alter the Minister’s obligation to take
into account this indefinite detention is in prospect as a legal consequence of
his proposed decision. This difference
lies in the fact that in NBMZ it was
virtually certain on the facts of that case that, if the Minister refused to
grant a visa under section 501(1), it would not be reasonably practicable to
remove the visa applicant from Australia in the immediate future and that, by
operation of the Act, he would be kept in detention for an indefinite time.
In the present case, the material before the Minister did
not show that it was virtually certain that it would not be reasonably practicable
to remove the appellant if his visa were cancelled. Rather, this material indicated that there
was a real possibility that the appellant’s removal would not be reasonably
practicable on account of his ill-health and that, if this were the case, the appellant
would face indefinite detention (by operation of sections 189, 196 and
198). Again, this difference did not
affect the Minister’s obligation to take into account the legal consequences of
his proposed decision (although it might affect his decision-making in other
ways). The Minister was obliged in this
case as in NBMZ to take into account
that the material before him disclosed that the appellant’s indefinite detention
was in prospect if he cancelled the appellant’s visa, as a consequence of
sections 189, 196 and 198 of the Act.
In addition to allowing the appeal on the above ground,
North J also held that the Minister’s decision was vitiated by a number of
other jurisdictional errors.
SOURCE: Dan Star - Law Institute Journal, June 2016
