Cockrell v Minister for Immigration and Citizenship [2008] FCAFC 160

FEDERAL COURT OF AUSTRALIA

Cockrell v Minister for Immigration and Citizenship [2008] FCAFC 160 MIGRATION – visa – cancellation on character grounds – ministerial direction to decision-makers – requirement to take into account best interests of a child where a parental or close relationship with a child is involved as a primary consideration – Tribunal did not accept that consent order of Federal Magistrates Court allowing contact between appellant and his son involved court articulating that best interests of child would be served by allowing him to have contact with his father – whether Tribunal failed to take into account primary consideration as required MIGRATION – visa – cancellation – discretion to cancel on character grounds – whether Tribunal mischaracterised discretion as a discretion not to cancel a visa MIGRATION – visa – cancellation on character grounds – relevant considerations – ministerial direction provided for primary considerations and "other considerations" – whether decision-maker bound to take "other considerations" into account – role of decision-maker in determining what are relevant considerations – whether Tribunal failed to take into account provisions of international conventions relating to the family and the rights of children, hardship to the appellant from loss of contact with his son, and the absence of any warning to the appellant that he may jeopardise his visa by committing serious offences

Constitution s 75(v) Family Law Act 1975 (Cth) Migration Act 1958 (Cth) ss 476A(1)(b), 476A(2), 483, 499, 501(2)

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Convention on the Rights of the Child Arts 5, 9, 10 Convention Relating to the Status of Refugees International Covenant on Civil and Political Rights Arts 6, 7, 23, 24 Protocol Relating to the Status of Refugees Second Optional Protocol to the International Covenant on Civil and Political Rights