Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125

FEDERAL COURT OF AUSTRALIA

Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 Appeal from: Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1223

File number: NSD 1072 of 2020

Judgment of: KATZMANN, DERRINGTON AND O'BRYAN JJ

Date of judgment: 16 July 2021

Catchwords: MIGRATION LAW – decision of the Administrative Appeals Tribunal not to revoke mandatory cancellation of visa under s 501CA(4) of the Migration Act 1958 (Cth) –whether Tribunal erred in formation of state of satisfaction for the purpose of s 501CA(4) – whether primary considerations stated in Ministerial Direction 79 were mandatory considerations in forming state of satisfaction – whether mandatory considerations included best interests of appellant's child – whether best interests of child raised in representations pursuant to s 501CA(3) – whether best interests of child clearly arose during hearing before Tribunal – whether Tribunal considered the best interests of the appellant's child – whether material before Tribunal on which consideration could occur – the migration status of the child consequent upon the cancellation of the appellant's visa and the revocation of the cancellation –whether Minister advanced legally erroneous submissions to Tribunal as to migration status of the child – whether erroneous submissions material to the Tribunal's decision –whether Tribunal failed to perform its statutory duty to consider the best interests of the appellant's child as a primary consideration – appeal dismissed STAUTORY INTERPRETATION – meaning of s 140(3) of the Migration Act 1958 (Cth) – whether s 140(3) applicable to the cancellation of a visa pursuant to s 501 PRACTICE AND PROCEDURE – application for leave to raise new ground of review on appeal – whether adequate explanation provided for failure to raise ground of review before primary judge – whether proposed new ground has sufficient merit – leave granted