Aporo v Minister for Immigration & Citizenship [2008] FCA 102

FEDERAL COURT OF AUSTRALIA

Aporo v Minister for Immigration & Citizenship [2008] FCA 102

MITA APORO v MINISTER FOR IMMIGRATION & CITIZENSHIP AND ANOR NSD 2090 OF 2007

RARES J

11 FEBRUARY 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2090 OF 2007

BETWEEN: MITA APORO

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE: RARES J DATE OF ORDER: 11 FEBRUARY 2008

WHERE MADE: SYDNEY

THE COURT:

1. Orders in the nature of a writ of certiorari in the first instance issue directed to the second respondent quashing its decision made on 18 October 2007. 2. Orders in the nature of a writ of mandamus issue directing that the proceedings be remitted to the second respondent to be heard and determined according to law. 3. Orders that the first respondent pay the applicant's costs. 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 2090 OF 2007

BETWEEN: MITA APORO

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE: RARES J

DATE: 11 FEBRUARY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Mr Aporo seeks constitutional writ relief against the decision of the tribunal to affirm the cancellation by a delegate of the Minister of his transitional special category visa (subclass TY444) pursuant to s 501(2) of the Migration Act 1958 (Cth). The Court has jurisdiction to decide the matter under s 39B of the Judiciary Act 1903 (Cth) and s 476A(1) of the Migration Act. The principal question presented by this application is whether the Administrative Appeals Tribunal failed to take into account, actually or constructively, the nature of the relationship between Mita Aporo and his nephew and nieces who were the children of his (half) brother. In the evidence before the tribunal were statutory declarations by both Mr Aporo's brother and their mother (the nephew and nieces' grandmother). Those demonstrated a close and loving relationship between Mr Aporo and the nephew and nieces. 2 There are also subsidiary questions including whether the tribunal also erred in failing to identify and take into account the best interests of Mr Aporo's daughter. 3 These questions arise in circumstances where Mr Aporo had a long criminal history. He had been incarcerated for considerable periods. That criminal history was primarily connected to his drug addiction and his antisocial behaviour as a result of either the drugs themselves or his desire to procure money to support his habit.