Cayzer v Minister for Immigration and Border Protection (No 3) [2016] FCA 806

FEDERAL COURT OF AUSTRALIA

Cayzer v Minister for Immigration and Border Protection (No 3) [2016] FCA 806 File number: TAD 31 of 2014

Judge: MORTIMER J

Date of judgment: 13 July 2016

Catchwords: MIGRATION – decision of Minister to cancel applicant's visa on character grounds pursuant to s 501(2) of the Migration Act 1958 (Cth) – applicant born in Scotland in 1960 – applicant arrived in Australia in 1965 on permanent entry permit – applicant has resided in Australia since 1965 – applicant convicted of maintaining sexual relations with a person under 17 years of age and sentenced to four years' imprisonment with non-parole period of two and a half years – whether applicant became an Australian citizen in 1981 in the course of applying to join Royal Australian Air Force – burden of proof – requirements for grant of citizenship CONSTITUTIONAL LAW – whether applicant an "alien" within the meaning of s 51(xix) of the Constitution – whether applicant one of the "people of the Commonwealth" within the meaning of s 24 of the Constitution – whether applicant a "subject of the Queen" within the meaning of s 117 of the Constitution – whether applicant has right to vote under s 41 of the Constitution – where applicant a British subject upon arrival in Australia – where applicant resided continuously in Australia since 1965 – where applicant enrolled to vote in federal elections prior to 26 January 1984 – where applicant voted in federal and State elections ADMINISTRATIVE LAW – whether Minister erroneously proceeded on basis that amending legislation had commenced when it was not yet in force – whether Minister's determination regarding risk posed by applicant to the community was legally unreasonable – whether applicant's conviction and sentence resulted in applicant failing to pass character test in s 501(6) of the Migration Act 1958 (Cth) – whether inadvertent omission by applicant of two pages from psychological report submitted to Minister meant subsequent cancellation decision was affected by jurisdictional error – whether cancellation decision unlawful because of fresh information not before Minister at time of decision – whether Minister misapplied Direction No. 55 – whether Minister failed to have regard to best interests of applicant's children – whether Minister made new decision by not responding to letter from applicant – application dismissed