The latest from the Federal Court: July 2016

ADMINISTRATIVE AND MIGRATION LAW

Jurisdictional error – failure to take into account a relevant consideration – indefinite detention

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 s 501. 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 s 501(2) of the Act. The primary judge dismissed the appellant’s application for judicial review.

The Full Court (North, Kenny and Perry JJ) 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 and Border Protection (2014) 220 FCR 1 which concerned s 501(1) of the Act. Justices Kenny and Perry said the NBMZ is authority for the proposition that, in exercising power under s 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 (at [133]): ‘There is also another difference between this case and NBMZ, but again it does not alter the Minister’s obligation to take into account that 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 s 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 ss 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 ss 189, 196 and 198 of the Migration 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 jurisidictional errors.