DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3

Federal Court of Australia

DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3 Appeal from: DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 570

File number(s): NSD 472 of 2022

Judgment of: WIGNEY, WHEELAHAN AND HALLEY JJ

Date of judgment: 1 February 2024

Catchwords: APPEAL AND NEW TRIAL — where the appellant sought to rely on grounds of review not put at first instance – where no error alleged in the reasons of the primary judge – where the practice of the Court is to require that leave be sought to raise new arguments in such circumstances – where the first respondent did not claim that it would suffer any prejudice if leave were granted and did not oppose leave being given – where the Court heard full argument – where there could be serious consequences for the appellant if a jurisdictional error existed in the Tribunal's decision – leave to raise new arguments granted MIGRATION — where the appellant's visa was mandatorily cancelled on character grounds pursuant to s 501(3A) of the Migration Act 1958 (Cth) – where a delegate of the Minister decided not to revoke the visa cancellation pursuant to s 501CA(4) – where the Tribunal affirmed the delegate's decision on review pursuant to s 500(1)(ba) – where para 13.3 of Direction 79, made pursuant to s 499(1) of the Migration Act, provides that a primary consideration to be taken into account when exercising the revocation discretion is the "expectations of the Australian community" – where a previous decision of the Full Court in FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 held that there are no "homogenous" community expectations in fact – where the appellant argued that the lack of an evidence-derived basis for determining "community expectations" made the judgment of the content of those expectations contingent upon the subjective judgment of the executive government of the day and therefore rendered the primary consideration incapable of rational application and outside of the scope of direction-making authority granted by s 499(1) – where in the alternative the appellant made arguments on the assumption that para 13.3 was valid – where the appellant submitted that the content of the primary consideration expressed in para 13.3 was to be determined solely by reference to that paragraph and not by reference to para 6.3(3) – where the Tribunal used words reflecting the language of para 6.3(3) in considering the para 13.3 primary consideration – where the appellant submitted that the Tribunal had erred when stating that the Australian community expected that a non-citizen who frequently commits serious crimes of a violent nature "will generally 'forfeit the privilege of staying' in Australia" – where the appellant submitted that the Tribunal had erred by failing to take into account particular countervailing factors specific to the appellant when determining, at a stage prior to the ultimate balancing exercise, that the para 13.3 primary consideration weighed heavily against the appellant – none of the alleged errors disclosed – the decision in QHRY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 827 should not be followed to the extent that it endorses the proposition that a decision-maker subject to Direction No 79 or cognate directions must reason by weighing each primary or other consideration against one another before undertaking the overall balancing exercise – appeal dismissed with costs