Hambledon v Minister for Immigration and Border Protection [2018] FCA 7

Hambledon v Minister for Immigration and Border Protection [2018] FCA 7

Grounds 1 and 2 did not disclose jurisdictional error. Any error in the Minister's statement that both Mr Cummins and Dr King assessed that specific treatment would lower the applicant's risk of recidivism was insignificant. The expert material, including Dr King's opinion that absence of risk depended on intensive...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
11 January 2018
Procedural Posture
Application for Judicial Review of a Decision Not to Revoke Cancellation of a Class BS Subclass 801 Partner (migrant) Visa Under S 501 Ca(4) of the Migration Act 1958 (cth) / Federal Court Reasons for Judgment; Grounds 1 and 2 Rejected; Ground 3 Stood Over Pending the High Court Decision in Falzon V Minister for Immigration and Border Protection [2017] Hcatrans 230 (no S31/2017)
Outcome
Grounds 1 and 2 of the amended application for judicial review were rejected; ground 3 was stood over and any further hearing adjourned.
Legal Topics
['mandatory Visa Cancellation Under S 501(3 A)' 'revocation of Visa Cancellation Under S 501 Ca(4)' 'character Test' 'jurisdictional Error' 'risk of Harm to the Australian Community' 'likelihood of Re Offending' 'judicial Power Under Ch III of the Constitution']
['migration Law' 'administrative Law' 'constitutional Law'] ['mandatory Visa Cancellation Under S 501(3 A)' 'revocation of Visa Cancellation Under S 501 Ca(4)' 'character Test' 'jurisdictional Error' 'risk of Harm to the Australian Community' 'likelihood of Re Offending' 'judicial Power Under Ch III of the Constitution']

Source-derived case record

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Procedural Posture

Application for Judicial Review of a Decision Not to Revoke Cancellation of a Class BS Subclass 801 Partner (migrant) Visa Under S 501 Ca(4) of the Migration Act 1958 (cth) / Federal Court Reasons for Judgment; Grounds 1 and 2 Rejected; Ground 3 Stood Over Pending the High Court Decision in Falzon V Minister for Immigration and Border Protection [2017] Hcatrans 230 (no S31/2017)

Legal Issues

  1. 1 ["Whether the Minister misunderstood or misapplied the statutory task when assessing the applicant's risk to the Australian community by treating expert psychological evidence as supporting a finding of ongoing likelihood of re-offending." 'Whether the Minister impermissibly equated risk of re-offending with likelihood of re-offending and thereby failed to address the statutory question under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).' 'Whether s 501(3A) of the Migration Act 1958 (Cth) was invalid as purporting to confer judicial power on the Minister contrary to Ch III of the Constitution.']

Ratio Decidendi

Grounds 1 and 2 did not disclose jurisdictional error. Any error in the Minister's statement that both Mr Cummins and Dr King assessed that specific treatment would lower the applicant's risk of recidivism was insignificant. The expert material, including Dr King's opinion that absence of risk depended on intensive treatment, gave a rational and probative basis for the Minister to infer that without treatment the applicant remained a low risk of re-offending. The Minister did not impermissibly confuse risk with likelihood; read fairly and as a whole, the reasons showed that likelihood of re-offending was considered in the context of assessing the risk of harm to the Australian community.

Court Disposition

Grounds 1 and 2 of the amended application for judicial review were rejected; ground 3 was stood over and any further hearing adjourned.

Orders

  • ["Ground 3 of the applicant's amended application for judicial review be stood over for mention on a date to be fixed, not sooner than seven days after the decision of the High Court of Australia in Falzon v Minister for Immigration and Border Protection [2017] HCATrans 230 (No S31/2017)." 'Any further hearing of...