Motufoaki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 74

Federal Court of Australia

Motufoaki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 74 Appeal from: Motufoaki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 601

File number: WAD 122 of 2022

Judgment of: KATZMANN, FEUTRILL AND RAPER JJ

Date of judgment: 22 May 2023

Catchwords: MIGRATION – appeal from judgment and orders dismissing application for judicial review of decision of Administrative Appeals Tribunal not to revoke a mandatory cancellation decision under s 501CA(4) of Migration Act 1958 (Cth) – whether the Tribunal lacked jurisdiction because the appellant not given an opportunity to be heard on whether another cancellation power should have been used – whether the Tribunal lacked jurisdiction because the cancellation decision was legally unreasonable – where the Tribunal did not refer in terms to two witness statements in considering the nature, strength and duration of the appellant's links to the Australian community, whether the Tribunal's decision involved a denial of procedural fairness or some other jurisdictional error PRACTICE AND PROCEDURE – where none of the points raised on the appeal were raised before the primary judge, whether leave should be granted to agitate them on appeal

Legislation: Federal Court of Australia Act 1976 (Cth) s 24 Migration Act 1958 (Cth) ss 116(1)(e), 501(2), 501(3), 501(3A), 501(5), 501(6), 501(7), 501CA(1), 501CA(3), 501CA(4) Ministerial Direction 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA para 13.2(4)