Sales v Minister for Immigration & Citizenship [2007] FCA 2094

FEDERAL COURT OF AUSTRALIA

Sales v Minister for Immigration & Citizenship [2007] FCA 2094

CHARLES EDWARD SALES v MINISTER FOR IMMIGRATION & CITIZENSHIP NSD 2230 OF 2007

FLICK J

21 DECEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2230 OF 2007

BETWEEN: CHARLES EDWARD SALES

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

JUDGE: FLICK J DATE OF ORDER: 21 DECEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

Upon the Respondent's undertaking not to remove the Applicant from Australia prior to the hearing and resolution of any appeal, and provided a Notice of Appeal is provided in time: 1. The Application be dismissed. 2. The Applicant is to pay the costs of the Respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2230 OF 2007

BETWEEN: CHARLES EDWARD SALES

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

JUDGE: FLICK J

DATE: 21 DECEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 25 September 2007 the then Minister for Immigration and Citizenship concluded that Mr Sales did not pass the "character test" as defined by s 501(6) of the Migration Act 1958 (Cth). The Minister decided to exercise his discretion under s 501(2) to cancel Mr Sales' Transitional Permanent (Class BF) visa. 2 Mr Sales was notified of that decision on 26 October 2007 and filed an Application seeking to review that decision with this Court on 13 November 2007. The jurisdiction of the Court invoked is that conferred by s 476A of the Migration Act 1958 (Cth). 3 Presently before the Court is an Amended Application which sets forth a number of grounds, including a contention that the Minister failed to consider a number of matters and failed to take into account: 1. the Convention on the Rights of the Child; 2. the International Covenant on Civil and Political Rights; 3. the Universal Declaration of Human Rights; and 4. the International Convention on the Rights of Persons with Disabilities. Included is a ground that the Minister's decision was "so unreasonable that no reasonable decision-maker could have made it." 4 The hearing of this Application was expedited on 26 November 2007 upon the basis that there was a prospect Mr Sales could be released from detention if he were successful in these proceedings. A necessary consequence of expedition and the time of year at which this hearing takes place is that such reasons as may now be given ex tempore are more confined than may otherwise have been desirable. 5 In support of the Amended Application, two Affidavits were sought to be relied upon. Objection was rightly taken to that material which was not before the Minister when he made his decision. The objection, at the time however, was merely noted and the hearing proceeded. Only that material which was before the Minister has been now considered: see Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 93–4. Confining the evidence in this way, it has been said, is: … concomitant to the principle that the proceeding before the court is one of judicial review and it is not for the court itself to make a decision, but rather to determine whether some error of law or principle is to be found in the decision-making process itself. No reason was advanced on behalf of Mr Sales to depart from this general approach in these proceedings. 6 It is considered that the Application should be dismissed.