Tran v Minister for Immigration and Border Protection [2019] FCAFC 126 is another sad character cancellation case. Mr. Tran moved to Australia at the age of 15 after he escaped from Vietnam with his brother and lived in a detention center in Hong Kong for a number of years. Mr Tran did have a “substantial criminal record” and was currently in prison for aggravated break and enter. There was evidence that he was rehabilitated from his drug addiction (which caused some of his prior offending) and he had the support of his wife and 3 Australian citizen children.
The case highlights the importance of identifying a jurisdictional error and not merely challenging the merits of the underlying decision (which is an impermissible in judicial review). Mr Tran was not legally represented either before the primary judge or in the appeal court. Even though the Court noted that subject to procedural fairness, poorly cast grounds of appeal (especially by self represented litigants) should be interpreted generously.
Nevertheless there was disagreement between the judges as to the ground of review being relied on. Greenwood J was prepared to find there had been a jurisdictional error because the delegate had not given “proper consideration” to the claim that being drug free since 2004 made future offending unlikely. However, Charlesworth and O’Callaghan JJ treated the same argument as being based on legal unreasonableness. Their Honours found that there was an “evident and intelligible” basis for not ruling out the risk of future offending (i.e. the decision was not unreasonable). Accordingly, Mr Tran’s visa remains cancelled and he will now have to return to Vietnam.
