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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.

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

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

The present matter involves an appeal from the decision of the Administrative Appeals Tribunal (‘Tribunal’) affirming the Minister for Immigration, Citizenship, and Multicultural Affairs’ decision not to revoke the cancellation of Mr. Thomas Shelby’s visa. The Applicant has raised grounds of appeal, challenging the Tribunal's consideration of the Mosley Government policy and its treatment of the video and confidential evidence provided by the Australian Federal Police (‘AFP’).

([Provide detailed analysis of the legal arguments, relevant statutory provisions, and case law pertaining to the issues raised in the grounds of appeal.) {Consideration of Mosley Government Policy:

The first ground of appeal challenges the Tribunal's consideration of the Mosley Government policy. The Applicant contends that this consideration led to a jurisdictional error. In assessing this claim, it is crucial to examine the relevant statutory provisions and legal principles governing the Tribunal's decision-making process.

Section 501CA(4)(b)(ii) of the Migration Act 1958 empowers the Tribunal to revoke a visa cancellation decision if satisfied that "there is another reason why the original decision should be revoked." The Applicant argues that the Tribunal erred by relying on the Mosley Government policy instead of considering Mr. Shelby's individual circumstances.

In support of this argument, the Applicant relies on the case law precedent of [relevant case], where it was held that the Tribunal must conduct a nuanced assessment of each case, taking into account individual factors. The Mosley Government policy, as a general principle, cannot be a substitute for a case-specific analysis. [Provide relevant quotes or key findings from the case law.]

Additionally, [cite any other relevant statutory provisions or case law] that emphasize the importance of individualized assessments in visa cancellation decisions.

B. Treatment of Video and Confidential Evidence:

The second ground of appeal challenges the Tribunal's treatment of video and confidential evidence submitted by the AFP. The Applicant argues that the Tribunal erred by considering this evidence without affording Mr. Shelby a fair opportunity to review and respond to it.

Section 501CA(3) of the Migration Act mandates that the Minister, after making a visa cancellation decision, must provide the individual with particulars of the relevant information and invite representations. The Applicant contends that the failure to provide information regarding the video and confidential evidence contravenes this statutory requirement.

In [cite relevant case law], the court emphasized the importance of procedural fairness in immigration matters, stating that individuals must be given a meaningful opportunity to respond to adverse evidence.

Moreover, the principles outlined in [another relevant case] establish that the Tribunal must ensure that the evidence relied upon is both relevant and reliable. The blurry video and indecipherable audio may raise concerns about the reliability of the evidence and the extent to which it can be considered in reaching a decision.}

(Continue with the analysis of the grounds of appeal, considering the Applicant's contentions and relevant legal principles.) {Continuing with the analysis of the grounds of appeal, the Applicant contends that the Tribunal committed a jurisdictional error by considering the Mosley Government policy instead of conducting an individualized assessment of his case. The legal argument centers on Section 501CA(4)(b)(ii) of the Migration Act, granting the Tribunal the authority to revoke a visa cancellation if satisfied that there is another reason justifying revocation. The Applicant invokes key principles from precedent cases, such as [relevant case], emphasizing the imperative for a case-specific evaluation rather than a blanket application of government policies.

Addressing the second ground, the Applicant argues that the Tribunal erred in admitting and considering video and confidential evidence without affording a fair opportunity for review and response. This aligns with the fundamental tenet of procedural fairness outlined in [precedent case], asserting that individuals must be given a genuine chance to respond to adverse evidence. Additionally, the Court must ensure the evidence considered is both relevant and reliable, as emphasized in [another relevant case}

{If needed, provide an evaluation of the Respondent's submissions and any counterarguments presented.} (In evaluating the Respondent's submissions, the Minister asserts that the visa cancellation aligns with the public interest, given Mr. Shelby's criminal convictions and alleged association with a notorious gang. The Respondent contends that the Mosley Government's anti-drug and anti-gang policy is a valid consideration in light of the public interest, arguing it was reasonably applied.

However, a counterargument arises concerning the lack of individualized scrutiny of Mr. Shelby's circumstances. While public interest is a legitimate factor, [relevant case] emphasizes the necessity of a nuanced assessment in each case. The Respondent's heavy reliance on video and confidential evidence also raises concerns about procedural fairness, contrary to the principles outlined in [precedent case]. Therefore, the Respondent's stance, while emphasizing public interest, may be viewed as inadequately balancing the need for individualized consideration and procedural fairness in this matter.)

After a meticulous examination of the presented evidence, legal contentions, and relevant statutes, I conclude that the first ground of appeal is substantiated. The Tribunal's reliance on the Mosley Government policy without conducting an individualized assessment constitutes a jurisdictional error. Additionally, the second ground is upheld, as the Tribunal's admission and consideration of video and confidential evidence without affording Mr. Shelby a fair opportunity to respond breach principles of procedural fairness. Consequently, the appeal is allowed, and the orders specified in this judgment are made in favor of the Applicant.

Orders sought

  1. The decision of the Tribunal to be set aside
  2. The Applicant’s visa to be reinstated

1.Setting Aside the Tribunal's Decision Regarding the Mosley Government Policy:

The Court finds merit in the first ground of appeal, asserting that the Tribunal erred in considering the Mosley Government policy without conducting an individualized assessment of Mr. Shelby's circumstances. Therefore, the Court orders that:

 a. The decision of the Tribunal dated 25 September 2023, which affirmed the Minister's visa cancellation decision based on the Mosley Government policy, is hereby set aside.

b. The matter is remitted to the Administrative Appeals Tribunal for reconsideration in light of the legal principles outlined in this judgment, with a directive to conduct a comprehensive and individualized assessment of Mr. Shelby's case, excluding reliance on the Mosley Government policy as a determinative factor.

2. Reinstating Mr. Shelby's Visa Regarding the Video and Confidential Evidence:

Considering the second ground of appeal, which challenges the Tribunal's treatment of video and confidential evidence without affording Mr. Shelby a fair opportunity to respond, the Court finds that procedural fairness was compromised. Therefore, the Court orders that:

a. Mr. Shelby's visa, which was previously canceled based on the Tribunal's decision relying on video and confidential evidence, is hereby reinstated.

b. The Minister is directed to afford Mr. Shelby a fair and reasonable opportunity to respond to the specific video and confidential evidence relied upon, consistent with the requirements of procedural fairness outlined in this judgment.

QUESTION 2

The NSW Government is concerned about the illegal import and sale of drugs, alcohol, tobacco and e-cigarettes in the state (especially by gangs like the Peaky Blinders) and wants to crack down on businesses running other illegal side hustles out of their stores.

In 2023, the New South Wales Parliament passes the Alcohol Limitations Act 2023 (NSW) (a fictious Act), which replaces existing laws regulating the sale of alcohol and tobacco products in NSW.

The Alcohol Limitations Act 2023 (NSW) relevantly states:

Section 2: This object of this Act is to regulate the sale and distribution of alcohol and tobacco products in a manner consistent with the public interest.

Section 3: There is hereby established an Alcohol and Tobacco Board, constituted by members to be appointed by the Governor.

Section 4: The Alcohol and Tobacco Board may make regulations as necessary and convenient to give effect to this Act.

Section 5(1): The Alcohol and Tobacco Board may grant licences to sell alcohol or tobacco to owners of retail liquor premises (‘licence’).

Section 5(2): For the purposes of subsection (1) ‘retail liquor premises’ are defined as ‘businesses which sell alcohol and tobacco products on-site to the public at retail prices’.

The Alcohol and Tobacco Board then enacts regulations. The Alcohol and Illegal Dealings Limitations Regulations 2023 (NSW) relevantly state:

Reg 2: The Director of the Board may issue a licence to owners of retail liquor premises to sell alcohol and tobacco products from those retail premises.

Reg 3: In determining an application for a licence, the Director must be satisfied that:

  • The retail owner only sells alcohol and tobacco products and related paraphernalia at their retail liquor premises; and
  • The retail owner must not allow the conduct of any other business on the premises.

Reg 4: Where an application for a licence under these Regulations is rejected, the preexisting licence immediately lapses on the day the decision is made.

Reg 10: Any person who is directly aggrieved by a decision of the Alcohol and Tobacco Board, or the Director, may seek review of the decision in the Supreme Court of NSW.

You are a lawyer working in New South Wales (‘NSW’).

Your client, Aberama Gold, is a small business owner who sells fine Irish Whisky, cigars and cigarettes and related paraphernalia. He is known to be associated with members of the Peaky Blinders gang, and it is generally ‘understood’ that you can acquire many ‘other’ items at his store.

Mr Gold’s licence is due to expire in three months, and so he applies to the ATB for a liquor licence to continue to sell alcohol and tobacco from his very popular store. The Director of the ATB, Mr Johnny Dogs (who happens to be the cousin of Mr Gold’s ex-girlfriend Polly Gray), rejects Mr Gold’s application.

The Director sends a letter to Mr Gold outlining his reasons for his decision. In the letter, the Director says: ‘I am not satisfied that you have been able to establish your compliance with Reg 3 of the Alcohol and Illegal Dealings Limitations Regulations 2023 (NSW). Specifically, I find that your retail business sells other products from the premises and allows patrons to conduct their own business on site. Therefore, I cannot grant your application for a licence.’

Mr Gold wants to know whether the Director’s decision can be challenged and what remedies might be available to him. Advise him. You may draft your advice as a letter written in the first person if you wish.

Your Name

Your Address

City, State, Zip Code

Date:

Aberama Gold; Client's Address; City; State: Zip Code:

Dear Mr. Gold,

I trust this letter thinks that you are well. I've committed extensive chance to looking at the new choice by the Overseer of the Liquor and Tobacco Board (ATB) to deny your application for an alcohol permit under the Liquor Constraints Act 2023 (NSW) and the Liquor and Unlawful Dealings Limits Guidelines 2023 (NSW). Given the meaning of this make a difference to your business, I expect to give thorough exhortation on the potential roads accessible for testing the choice and the cures that could be sought after.

The Director's decision centers on the assertion that your retail establishment, specializing in the sale of fine Irish Whisky, cigars, cigarettes, and related paraphernalia, is in violation of Regulation 3 of the Alcohol and Illegal Dealings Limitations Regulations 2023 (NSW). Specifically, the Director claims that your business sells products beyond alcohol and tobacco and permits patrons to engage in their own business activities on the premises.

1. Review of the Decision:

Regulation 10 of the Alcohol and Illegal Dealings Limitations Regulations 2023 (NSW) grants the right to seek a review in the Supreme Court of NSW for any person directly aggrieved by a decision of the ATB or the Director. This legal recourse provides an opportunity to present a comprehensive case, addressing the grounds on which the decision was made. A thorough review of the decision and its adherence to the governing laws will be crucial in preparing an effective challenge.

2. Compliance with Regulation 3:

To build a robust case, we must conduct a meticulous examination of your business practices in light of Regulation 3. If there are substantial grounds to dispute the Director's claims, such as misinterpretations or factual inaccuracies, these could form the basis of a compelling challenge. It's important to provide evidence demonstrating that your retail business adheres to the prescribed regulations, selling only alcohol and tobacco products and related paraphernalia on the premises.

3. Procedural Fairness:

Ensuring procedural fairness is vital in any legal challenge. We will intently examine the dynamic cycle for adherence to the standards of reasonableness. This incorporates looking at whether you were managed the cost of a fair and impartial chance to put forth your perspective, answer any unfavorable data, and address any likely irreconcilable situations coming from the connection between the Chief and your ex, Polly Dark. Any procedural irregularities could strengthen your case.

4. Legal Representation:

Given the complexity of the matter, it is advisable to engage legal representation. A legal professional can provide expert advice, guide the gathering of relevant evidence, and advocate on your behalf during any review proceedings. Legal representation will ensure that your interests are well-protected throughout the process.

5. Remedies:

Success in a Supreme Court review may lead to the quashing of the Director's decision, potentially resulting in the granting of the liquor licence. Moreover, the court could consider additional remedies, such as compensation for any losses incurred during the period of licence rejection. We will explore all available legal avenues to secure the best possible outcome for your business.

6. Public Interest and Business Impact:

Given the popularity and positive impact of your business within the community, it may be beneficial to emphasize its positive contributions. We can explore highlighting how your business aligns with the public interest by providing high-quality products and contributing to the local economy.

7. Engagement with Stakeholders:

Consider engaging with key stakeholders, such as the local community, to garner support for your cause. Testimonials and statements attesting to the positive impact of your business on the community could be powerful in influencing the court's perception.

8. Documentation and Evidence:

Ensure all relevant documentation and evidence supporting your compliance with the regulations are meticulously gathered. This includes sales records, business operation procedures, and any other documentation that substantiates your adherence to the stipulated requirements.

In conclusion, to safeguard your legal rights, I recommend that we promptly initiate the process for seeking a review in the Supreme Court of NSW. Acting inside the endorsed time span is basic to guarantee that your case is heard. In the event that you wish to continue with legitimate portrayal, kindly make it a point to me. I'm free to resolve any inquiries you might have and offer continuous help in the interim.

I look forward to further discussion on this matter and working collaboratively towards a favorable resolution.

Yours sincerely,

Your Full Name

Your Title

Your Contact Information

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