Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59

Federal Court of Australia

Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59 File number(s): NSD 1537 of 2023

Judgment of: RANGIAH, THAWLEY AND SHARIFF JJ

Date of judgment: 24 May 2024

Catchwords: MIGRATION – procedural fairness – where Administrative Appeals Tribunal decided not to revoke the cancellation of the appellant's visa – where delegate concluded that the "best interests of children" consideration weighed in favour of revocation – where respondent did not advance a positive case that the "best interests of children" consideration weighed in favour of revocation and made a concession in closing submissions before the Tribunal that the "best interests of children" consideration weighed in favour of revocation – where Tribunal found the consideration weighed against revocation – whether Tribunal denied procedural fairness – Tribunal failed to afford the appellant procedural fairness – appeal allowed on grounds not argued at trial PRACTICE AND PROCEDURE - where appellant sought leave to raise new grounds of judicial review on appeal – leave granted on the basis that the new grounds had sufficient merit

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) Migration Act 1958 (Cth)

Cases cited: Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 Comcare v Fiedler [2001] FCA 1810; 115 FCR 328 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1333 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116; 298 FCR 516 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 Perpetual Trustee Company (Canberra) Ltd v Commissioner for Australian Capital Territory Revenue [1994] FCA 367; 50 FCR 405 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 501; 31 FCR 100 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152