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Subject:Law

Course:LAWS315

QUESTION 1

You are a Justice of the Federal Court of Australia, siting in the General Division, with experience hearing cases in the Administrative and Constitutional Law and Human Rights National Practice Area.

On 10 October 2023 you received a notice of appeal from a decision of the Administrative Appeals Tribunal, dated 25 September 2023, relating to a decision of the Minister for Immigration, Citizenship, and Multicultural Affairs not to revoke the cancellation of a visa. You heard the detailed legal arguments of counsel on 16 October.

You will deliver your judgment on 5 November 2023. Your judgment will provide a brief outline of the arguments received and your assessment of those arguments.

You know that the decision of the Minister was a reviewable decision in the Administrative Appeals Tribunal. Therefore, there is no question whether the Tribunal had jurisdiction to review the Minister's decision.

The Tribunal accepted the evidence provided by the Minister and determined that the facts did not support the revocation of the cancellation of the visa. Therefore, the Tribunal affirmed the Minister's decision.

The Notice of Appeal from a Tribunal, and the Written Submissions from both the Applicant and the Respondent are provided below.

In these documents you will find the versions of facts asserted by the Applicant and the Respondent as well as the grounds for this appeal.

You will conduct research into the relevant law and administrative law principles to determine whether the grounds for appeal have been made out.

deliver your judgment using the form template provided below. Replace the sections highlighted in yellow, and remember to remove the highlighting before submitting.

Form 75

Rules 33.12(1); 33.34; 33.40

Notice of appeal from a tribunal

No. 570 of 2023

Federal Court of Australia

District Registry: New South Wales

Division: General

On appeal from the Administrative appeals tribunal

Mr Thomas Shelby

Applicant

Minister for Immigration, Citizenship, and Multicultural Affairs

Respondent

To the Respondent

The Applicant appeals from the decision as set out in this notice of appeal.

The Court will hear this appeal, or make orders for the conduct of the proceeding, at the time and place stated below. If you or your lawyer do not attend, then the Court may make orders in your absence.

You must file a notice of address for service (Form 10) in the Registry before attending Court or taking any other steps in the proceeding.

Time and date for hearing: 16 October 2023

Place: New South Wales Registry

The Court ordered that the time for serving this application be abridged to: N/A

Date:

Signed by an officer acting with the authority of the District Registrar

The Applicant appeals from the decision of ADMINISTRATIVE APPEALS TRIBUNAL given on 25 September 2023.

The Tribunal decided to affirm the decision of the Respondent.

The Applicant appeals from the whole of that decision.

Questions of law

1. Whether the Tribunal fell into jurisdictional error by considering the Mosley Government policy;

2. Whether the Tribunal fell into jurisdictional error by its treatment of the video and confidential evidence submitted by the Respondent;

Orders sought

1. The decision of the Tribunal to be set aside

2. The Applicant's visa to be reinstated

Certificate under section 486I of the Migration Act 1958

For the purposes of section 486I of theMigration Act 1958,I Ada Thorne certify that there are reasonable grounds for believing that this migration litigation (within the meaning of section 486K of that Act) has a reasonable prospect of success.

Date: 10 October 2023

Signed by Ada Thorne (solicitor)

NOTICE OF FILING

Details of Filing

Document Lodged: Submissions

Court of Filing FEDERAL COURT OF AUSTRALIA (FCA)

Date of Lodgment: 10/10/2023 9:55 PM AEST

Date Accepted for Filing: 10/10/2023 9:55 PM AEST

File Number: NSWD570/2023

File Title: THOMAS SHELBY v MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Registry: NEW SOUTH WALES REGISTRY - FEDERAL COURT OF AUSTRALIA

APPLICANT'S WRITTEN SUBMISSIONS

APPEAL OF THE TRIBUNAL'S DECISION

1. The Applicant appeals the decision of the Administrative Appeals Tribunal ('Tribunal') to the Federal Court of Australia via s 44 of theAdministrative Appeals Tribunal Act 1975(Cth) ('AAT Act').

2. The Applicant's visa was cancelled pursuant to s 501(3A) of theMigration Act 1958(Cth) ('Migration Act') on the basis that the Applicant did not meet the character test. The Respondent, the Minister for Immigration, Citizenship and Multicultural Affairs ('the Minister') decided not to revoke the cancellation of the visa, finding that pursuant to s 501CA(4)(b)(ii) there was not 'another reason' to revoke the cancellation.

3. The Minister notified Mr Shelby of the Minister's decision by way of a letter, which provided very little information as to reasons for the decision.

4. The Applicant sought review of the Minister's decision in the Tribunal, where the Tribunal affirmed the Minister's decision.

APPLICANT'S STATEMENT OF RELEVANT FACTS

5. The Applicant, Mr Shelby, is a person born in Birmingham, England, and has been living in Australia for 14 years, since January 2009 following the death of his first wife, Grace Shelby. He holds citizenship of the United Kingdom and an Australian visa. Mr Shelby applied for Australian citizenship in 2021, however he has not heard of any progress relating to that application. Mr Shelby already thinks of himself as an Australian. Mr Shelby is a hard-working member of the local community, working as a philanthropist, and having established charitable organisations for children. He is well-known in the area of The Rocks in Sydney where he also lives.

6. In 2014 Mr Shelby married an Australian woman, Elizabeth Shelby (nee Stark). They have 3 children together, A, B, and C (names redacted), who were born in Australia and are Australian citizens.

7. Mrs Shelby suffers from chronic pain and depression, the causes of which remain undetermined. Mrs Shelby was advised by a physician to use marijuana to assist in managing the pain.

8. Mr Shelby is first and foremost a family man, and in order to care for his wife, Mr Shelby has cultivated a small marijuana crop on his private premises for the purposes of supplying his wife.

9. In 2022, Australian Federal Police ('AFP') received an anonymous tip regarding the small marijuana crop and shared this information with New South Wales Police, who subsequently charged Mr Shelby with a number of drug-related offences, including possession and trafficking. Mr Shelby was convicted of the possession charges and is currently serving a term of imprisonment of 18 months. Mr Shelby is currently challenging his conviction.

10. In the course of the AFP's investigations, they allege to have legally acquired video footage which they claim shows Mr Shelby conversing with notorious violent gang members, which they also claim demonstrates a relationship between Mr Shelby and these gang members. Mr Shelby vehemently denies these accusations. The video footage is blurry and the audio is indecipherable.

11. Mr Shelby was not made aware of the existence of this video recording until the course of the Tribunal hearing, and therefore Mr Shelby was not provided an opportunity to carefully review the recording and consider his response to its contents.

12. Further, the AFP alleged that the video confirmed their intelligence that Mr Shelby is in fact the head of a drug ring, known as the 'Peaky Blinders'. Again, this information was not provided to Mr Shelby prior to the Tribunal hearing.

13. The Respondent Minister was provided with additional confidential information by the AFP which was also provided to the Tribunal. This information was withheld from Mr Shelby.

14. The Minister stated in submissions to the Tribunal that the Commonwealth Government, headed by Prime Minister Oswald Mosley ('Mosley Government'), has a firm policy of deporting what they call 'illegal immigrants' who are involved in the trafficking and distribution of illegal drugs. Both the Minister and the Tribunal have relied upon that policy rather than considering Mr Shelby's individual circumstances.

15. Mr Shelby submitted to the Minister that cancellation of Mr Shelby's visa resulting in his deportation was bound to cause great distress to Mr Shelby's wife and children as he will have great difficulty getting a job in the United Kingdom due to the rumours that he is the leader of a gang, which he denies. Further, Mr Shelby affirms that he is indeed a person of good character.

GROUNDS OF APPEAL

16. The Tribunal therefore erred in:

a. Considering the policy of the Mosley Government;

b. Allowing and considering the confidential and video evidence of the AFP.

ORDERS SOUGHT

17. Pursuant to s 44(4) of theAAT Act, that the Federal Court order the decision of the Tribunal to be set aside, and Mr Shelby's visa be reinstated.

NOTICE OF FILING - RESPONDENT'S SUBMISSIONS

Details of Filing

Document Lodged: Submissions

Court of Filing FEDERAL COURT OF AUSTRALIA (FCA)

Date of Lodgment: 10/10/2023 16:55 PM AEST

Date Accepted for Filing: 10/10/2023 16:55 PM AEST

File Number: NSWD570/2023

File Title: THOMAS SHELBY v MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Registry: NEW SOUTH WALES REGISTRY - FEDERAL COURT OF AUSTRALIA

RESPONDENT'S WRITTEN SUBMISSIONS IN REPLY

CERTIFICATION

1. The Respondent ('Minister') certifies that these submissions are in a form suitable for publication on the internet.

ISSUES

2. This appeal concerns the validity of the Tribunal's decision ('Tribunal's decision') to affirm the Minister's decision under s 501CA(4) of theMigration Actnot to revoke the cancellation of the Applicant's visa. The Minister wrote to the Applicant setting out his reasons for the decision as follows:

"Due to your conviction and sentencing for a period of 18 months (ongoing), and due to the fact that you have failed the character test, I have decided pursuant to theMigration Acts 501(CA)(4) that it would not be in the public interest to revoke the cancellation of your visa. Therefore, you will be deported to your home country of England. You may appeal this decision to the Administrative Appeals Tribunal.

GROUNDS OF APPEAL

3. The grounds of appeal have been set out in the written submissions of the Applicant at para [15].

4. The Minister respectfully submits that the grounds for appeal have not been made out.

RESPONDENT'S STATEMENT OF RELEVANT FACTS

5. The Respondent does not dispute that the Applicant, Mr Shelby, is a person who holds United Kingdom citizenship, having been born in Birmingham, England. Immigration records show that the Applicant has been living in Australia for 14 years. There is no record of the Applicant's application for Australian Citizenship.

6. The Respondent does not dispute the Applicant's submission in paragraphs [6]-[7] of the Applicant's Submissions. The Respondent was aware of this information at the time of the original decision.

7. The Respondent does not dispute the Applicant's submission in paragraph [9] of the Applicant's Submissions. The Respondent was aware of this information at the time of the original decision.

8. The Commonwealth Government is particularly determined to crack down on the illegal drug trade in the public interest. The AFP has information that there is a large trade in illegal marijuana in The Rocks area of Sydney, being masterminded by a man with a British accent known as 'Tommy', who is said to be the leader of the 'Peaky Blinders' gang. This gang has been linked to drug trafficking, illegal gambling, and match-fixing.

9. In the course of the AFP's investigations, an informant (whose identity cannot be revealed) alerted the AFP to the Applicant's sizeable marijuana crop on his private property where he resides with his wife and children.

10. The informant provided the AFP with a video recording that clearly shows the Applicant conversing with and hugging known members of the Peaky Blinders gang. The audio does not pick up what the men were saying.

11. In light of the Applicant's drug offence convictions and association with members of a violent gang, the Minister's delegate (the 'delegate') cancelled the Applicant's visa under theMigration Act. The delegate informed the Applicant of the decision and invited the Applicant to make representations as to why the Applicant does not fail the character test, or whether there is another reason, and therefore the Minister should exercise his discretion to revoke the cancellation of the visa.

Relevantly theMigration Actprovides as follows:

Section 501(3A)(a) states that the Minister must cancel a visa on 'character grounds' if the Minister is satisfied that the person does not pass the character test.

Section 501(6)(a) states that a person does not pass the character test if that 'person has a substantial criminal record' (as defined by subsection (7)).

Section 501(7)(c) states that a person has a substantial criminal record if they have 'been sentenced to a term of imprisonment of 12 months or more'.

Section 501CA(3) states that after making the decision to cancel the visa, the Minister must (a) give the person, in the way that the Minister considers appropriate in the circumstances (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information. Further, under s 501CA(3)(b) the Minister must invite the person to make representations to the Minister... about revocation of the...decision.

Section 501CA(4) states that the Minister may revoke the [cancelation decision] if (a) the person makes representations in accordance with the invitation and (b) the Minister is satisfied (i) that the person passes the character test; or (ii) that there is another reason why the original decision should be revoked.

12. The Respondent was not satisfied that the Applicant passes the character test, nor that there was another reason why the visa cancellation should have been revoked, having regard to the public interest in deporting illegal immigrants involved in the illegal drug trade and violent gang-related activities.

13. The Respondent relied on the evidence of the criminal conviction and the intelligence provided by the AFP. The Respondent considered the Applicant's standing in the community and philanthropic work, as well as the likely impact of deportation on Mrs Shelby and their three children.

14. The Respondent also had regard to the Mosley Government's stance against drug and gang related crimes and reasonably believed the decision to give effect to the public interest in light of this policy.

ORDERS SOUGHT

15. The appeal to the Federal Court be dismissed.

FEDERAL COURT OF AUSTRALIA

THOMAS SHELBY v MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS [2023] FCA 5000

Judge: [Your surname] J

Date: 5 November 2023

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

REAONS FOR JUDGMENT

[Your surname] J

1. ...

[#] Therefore the appeal should be [allowed/dismissed]

ORDERS

THE COURT ORDERS THAT:

1.

2.