XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 167

Federal Court of Australia

XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 167 Appeal from: XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 323

File number(s): VID 245 of 2020

Judgment of: PERRY, BANKS-SMITH AND ANDERSON JJ

Date of judgment: 6 October 2020

Catchwords: MIGRATION – appellant a citizen of Myanmar granted a refugee visa – appellant pleaded guilty in the County Court of Victoria to a number of offences – delegate of Minister cancelled visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) – delegate refused to revoke that cancellation – Tribunal affirmed that non-revocation decision MIGRATION – whether the Tribunal failed to cumulatively weigh considerations favouring revocation of the cancellation decision against those considerations tending against revocation – Tribunal undertook a detailed and well-reasoned consideration of the issues – Tribunal did not fail to weigh the considerations cumulatively MIGRATION – whether Tribunal failed to carry out the statutory task under s 501CA of the Act by way of the Tribunal's consideration of the appellant's ability to apply for a protection visa – whether the Tribunal misunderstood the legal consequences of its decision – no jurisdictional error established – the Tribunal gave attention to what in fact would be the possible course of decision-making – no material error in Tribunal finding that any risk of harm to the appellant if he was deported was minimised by the fact that he could apply for a protection visa MIGRATION – whether Tribunal failed to consider appellant's argument that non-revocation would be inconsistent with Australia's obligations under the Convention on the Rights of the Child – Tribunal did not fall into jurisdictional error by failing to consider the brief submission on the Convention advanced by the appellant – those submissions did not materially add to appellant's other submissions – Tribunal did not overlook a substantial, clearly articulated argument MIGRATION – whether Tribunal proceeded on an erroneous assumption of law as to the manner in which Australia's non-refoulement obligations would be considered if the appellant applied for a protection visa – Tribunal did not defer consideration of protection claims – Tribunal accepted that non-refoulement obligations arose but observed that it could not determine them on the limited evidence and in the time available – Tribunal observed non-refoulement considerations did not outweigh the statutory primary considerations and consideration of non-refoulement obligations was tempered by prospect of a protection visa application that would allow for full and detailed analysis of the appellant's protection claims – no jurisdictional error