Callaghan v Minister for Immigration and Border Protection [2017] FCA 66

FEDERAL COURT OF AUSTRALIA

Callaghan v Minister for Immigration and Border Protection [2017] FCA 66 File number: NSD 1695 of 2016

Judge: FLICK J

Date of judgment: 8 February 2017

Catchwords: PRACTICE AND PROCEDURE – application for an extension of time – the date of the migration decision MIGRATION – cancellation of visa – failure to pass character test – failure to consider relevant considerations – the need to establish legal and not factual error

Legislation: Migration Act 1958 (Cth) ss 476A, 476A(1)(b), 477, 477(1)

Date of hearing: 14 November 2016

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 31

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr T Reilly

Solicitor for the Respondent: Australian Government Solicitor

ORDERS NSD 1695 of 2016

BETWEEN: DAVID GRANT CALLAGHAN Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: FLICK J DATE OF ORDER: 8 FEBRUARY 2017

THE COURT ORDERS THAT:

1. The Notice of Objection to Competency dated 7 October 2016 is dismissed. 2. The proceeding is dismissed. 3. The Applicant is to pay the costs of the First Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 The Applicant in the present proceeding, Mr David Callaghan, was born in 1968 and came to Australia in August 1996. He is a citizen of New Zealand. 2 He has an extensive criminal record, including a number of offences committed in New Zealand and Australia. In New Zealand he had been convicted of offences including assaulting a police officer and common assault. In Australia he has been convicted of offences ranging from destroying or damaging property; shoplifting offences; possessing prohibited drugs; and threatening grievous bodily harm. These examples are by no means an exhaustive statement. 3 On 18 February 2016 his visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the "Migration Act"). In cancelling the visa, a delegate of the Minister was satisfied that Mr Callaghan did not pass the character test because of the operation of s 501(6)(a) and s 501(7)(c) of that Act. 4 On 18 February 2016 Mr Callaghan made a request that the cancellation of his visa be revoked. That request was refused on 31 May 2016. 5 An Application for Review of the May 2016 decision was then filed with the Administrative Appeals Tribunal. A hearing was held on 15 August 2016. The Tribunal on the same day made orders affirming the May 2016 decision. The Tribunal published its reasons for decision on 15 September 2016: Re Callaghan and Minister for Immigration and Border Protection [2016] AATA 713. 6 A Notice of Appeal from the Tribunal's decision was filed in this Court on 29 September 2016. The Questions of Law as set forth in that Notice provide as follows (without alteration): USED ICO ORDER TO MAKE DECSION THAT HAD EXPIRED / 2 DID NOT MAKE SURE WHAT THE AAT DECSION MAKER WAS READING AND TAKING IN ACCOUNT WAS TRUE AND CORRECT REGARING CERTAIN MATTERS ./3 DID NOT LOOK AT MY CHILD PRIMARY CONSIDERATIONS /4 IN HIS ASSESSMENT OF PRIMARY FACTORS OF RISK TO AUSTRALIAN COMMUNITY TOOK INTO ACCOUNT FACTORS THAT WHERE NOT RELEVANT TO ASSESSMENT OF THE SERIOUSNESS OF THE OFFENCE AND RISK OF REOFFENDING 7 Mr Callaghan appeared before this Court unrepresented; Counsel appeared for the Respondent Minister.