Cockrell v Minister for Immigration and Citizenship [2007] FCA 1779

FEDERAL COURT OF AUSTRALIA

Cockrell v Minister for Immigration and Citizenship [2007] FCA 1779

ADMINISTRATIVE LAW – application for constitutional writs – where Minister cancelled applicant's visa pursuant to s 501(2) Migration Act 1958 (Cth) – where Administrative Appeals Tribunal affirmed decision – where case involved parental relationship between child and applicant – where direction given under s 499 Migration Act 1958 (Cth) that best interests of child be a primary consideration – where contact orders made by consent in Federal Magistrates Court providing for contact between applicant and child – where Tribunal rejected applicant's submission that contact orders reflected Federal Magistrates Court's view of best interests of child – where common ground that Tribunal's characterisation of contact orders rested on misinterpretation of Family Law Act 1975 (Cth) – whether error of law going to jurisdiction – whether Tribunal misunderstood nature of its discretion – whether Tribunal failed to consider relevant consideration Held: Misinterpretation of Family Law Act 1975 (Cth) not error going to jurisdiction conferred by s 501(2) Migration Act 1958 (Cth) and exercised in fact – best interests of child considered in accordance with Minister's direction – failure to consider a particular item of evidence relevant to best interests of child not a failure to consider best interests of child – application dismissed Family Law Act 1975 (Cth) ss 43, 60CA, 60CC, 60CC(5), 64B, 65AA, 65E, 68E, 68F Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) ss 61DA, 61DB Migration Act 1958 (Cth) ss 476A(1)(b), 499, 499(2A), 501, 501(2) Criminal Code 1899 (Qld) Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 referred to Rocca v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 529 referred to MARCUS COCKRELL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ADMINISTRATIVE APPEALS TRIBUNAL SAD 82 OF 2007