Toia v Minister for Immigration and Citizenship [2009] FCAFC 79

FEDERAL COURT OF AUSTRALIA

Toia v Minister for Immigration and Citizenship [2009] FCAFC 79 MIGRATION – application for review of decision of Administrative Appeals Tribunal to cancel visa on character grounds under s 501 of the Migration Act 1958 (Cth)– whether appellant was absorbed into the Australian community and therefore held an absorbed person visa – whether appellant was entitled to advance a position in her claim for review which was the opposite to the position taken before the Tribunal – whether Tribunal's discretion miscarried in finding that the appellant would not suffer hardship if returned to New Zealand – appeal dismissed. Migration Act 1958 (Cth), ss 501 Migration Amendment Act 1983 (Cth) Migration Legislation Amendment Act 1994 (Cth) Migration Reform Act 1992 (Cth) Migration Reform (Transitional Provisions) Regulations 1994 (Cth), reg 17 Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 152 referred to Badraie v Commonwealth of Australia and Ors (2005) 195 FLR 119 referred to Birdseye v Australian Securities and Investment Commission (2003) 38 AAR 55 referred to Charlie v Minister for Immigration and Citizenship (2008) 171 FCR 44 referred to Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 referred to Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 referred to The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 referred to Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 494 referred to Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 applied Lambidis v Commissioner of Police (1995) 37 NSWLR 320 referred to Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 applied Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 referred to Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 referred to Orr v Holmes (1948) 76 CLR 632 referred to Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd (1978) 139 CLR 231 referred to Potter v Minahan (1908) 7 CLR 277 referred to Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 referred to Repatriation Commissioner v Warren (2008) 167 FCR 511 referred to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 referred to Ex parte Walsh; In re Yates (1925) 37 CLR 36 referred to Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10 referred to Direction No. 21 – Visa Refusal and Cancellation under Section 501 PATRICIA CAROL TOIA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL