Case: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Outcome: cited
Nonetheless if the applicant's visa has been cancelled on the basis of a decision infected by jurisdictional error, the Court has jurisdiction to consider an application to have the decision quashed: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. 9 In this case the applicant has not framed his application in terms of judicial review of the Tribunal's decision, or sought to have that decision quashed pursuant to s 39B Judiciary Act 1903 (Cth). However at the hearing the applicant applied for leave to have the errors of law raised in his draft notice of appeal deemed to be grounds for review. This application for leave was not opposed by the Minister and leave was granted. 10 The Tribunal identified the two issues in the application before it as: 1. Whether the applicant did not pass the character test in s 501(6)(a) because of his past and present criminal conduct and, if so 2. Whether the Tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the Minister to cancel the applicant's visa. 11 The background facts as found by the Tribunal may be summarised as follows: &#8226; The applicant was born in New Zealand in 1954 and first arrived in Australia in 1996. In New Zealand the applicant had accumulated a substantial criminal record. In all, he was sentenced to over 11 years imprisonment in New Zealand, not including sentences which were served concurrently. &#8226; On arrival in Australia the applicant was granted a special category visa class TY subclass 444. He did not, however, satisfy the requirements for an absorbed person visa under s 34(2) Migration Act . &#8226; His lengthy New South Wales criminal history commenced on 11 November 1997. On three separate occasions he has been sentenced to terms of imprisonment of 12 months or more. Nine of his more serious custodial sentences were confirmed on appeal and none appear to have been reversed or reduced. &#8226; On 6 June 2006 the applicant was convicted at Coffs Harbour District Court of the offence supplying a prohibited drug in an indictable quantity (not cannabis), for which he was sentenced to three years imprisonment with a non-parole period of 15 months. At the same time he was convicted of two counts of possessing a prohibited drug for which he was sentenced to six months imprisonment, to be served concurrently. &#8226; On 1 February 2007 the applicant was notified of the Minister's intention to consider cancelling the applicant's visa under s 501(2) Migration Act . After considering the applicant's response, the delegate of the Minister made the decision to cancel the applicant's visa on 23 May 2007. 12 The Tribunal noted that, at the hearing before it, the applicant had had no access to writing material at the Brisbane City Watchhouse, and that he had had little time to prepare a statement for transmission to the Tribunal and the respondent. However the Tribunal also noted that at earlier telephone directions the applicant had been informed of the importance of ensuring that all witness statements were filed and served on time (at [24]). 13 The Tribunal observed that under s 501(2) Migration Act , the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). It is clear that the Minister retains a discretion as to whether the relevant visa should be cancelled. 14 Section 501(6) provides that a person does not pass the character test if, inter alia : (a) the person has a substantial criminal record (as defined by subsection (7)); or ... (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or