Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125

Federal Court of Australia

Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125 Appeal from: Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1240

File number: SAD 191 of 2021

Judgment of: PERRY, DERRINGTON AND O'SULLIVAN JJ

Date of judgment: 2 August 2022

Catchwords: MIGRATION – appeal from Federal Court dismissing application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming delegate's decision made under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke mandatory visa cancellation under s 501(3A) – where primary judge held the Tribunal had erred in failing to consider whether it was satisfied of "another reason" for revocation for the purposes of s 501CA(4)(b)(ii) – where first respondent's notice of contention contended that the Tribunal had asked itself the correct question by virtue of applying Direction No 79 – where Tribunal had treated the matter as the exercise of a purely discretionary power to revoke or not revoke the cancellation decision – whether primary judge erred in finding that the Tribunal's error was not material – where notice of contention dismissed – where Tribunal's error in failing to address the correct question was material to the outcome because there was a realistic possibility of a different outcome – where Tribunal's error therefore affected by jurisdictional error – appeal allowed

Legislation: Migration Act 1958 (Cth) ss 65, 91WA, 499, 501, 501CA Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)