Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80

FEDERAL COURT OF AUSTRALIA

Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80

MIGRATION – appeal from decision of Administrative Appeals Tribunal affirming decision of delegate of first respondent Minister to cancel applicant's visa – where applicant citizen of New Zealand holding special category visa in Australia – where applicant convicted of serious criminal offences – where Minister cancelled applicant's visa pursuant to s 501(2) of Migration Act 1958 (Cth) – where applicant purported to appeal under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) – whether appeal under Administrative Appeals Tribunal Act competent – whether power conferred by s 501(2) of Migration Act 1958 (Cth) limited or supplanted by terms of s 200 and s 201 of the Act – whether power to cancel visa exercised used for punitive purpose – whether Tribunal member failed to give proper consideration to relevant matters – whether Tribunal member took expectations of Australian community into account.

Held – appeal under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) incompetent – decision excluded from scope of s 44 even if in excess of jurisdiction or resulting from failure to exercise jurisdiction – s 501 of Migration Act 1958 (Cth) not limited by s 200 and s 201 – no evidence Tribunal member exercised power for improper or punitive purpose – Tribunal member gave proper consideration to matters identified by applicant – Tribunal member did take expectations of Australian community into account – appeal dismissed. Administrative Appeals Tribunal Act 1975 (Cth) s 44 Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 5, 5E, 501, 476A, 483 Migration Litigation Reform Act 2005 (Cth) Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia(1932) 47 CLR 1 considered Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 applied Hoffman v Chief of Army (2004) 137 FCR 520 referred to Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 referred to Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 referred to Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 81 ALJR 1 followed Minister for Immigration v Bhardwaj (2002) 209 CLR 597 referred to Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 referred to Pull v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 20 referred to Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 referred to FEOFAAKI EPENISA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND ADMINISTRATIVE APPEALS TRIBUNAL SAD 56 OF 2006