FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990

FEDERAL COURT OF AUSTRALIA

FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 Appeal from: Application for judicial review of the AAT decision delivered on 8 November 2018 by Dr L Bygrave

File number: NSD 852 of 2019

Judge: THAWLEY J

Date of judgment: 26 November 2019

Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – original decision by delegate of Minister not to revoke mandatory visa cancellation under s 501CA(4) of the Migration Act 1958 (Cth) – whether jurisdictional error – whether the Tribunal thought "primary considerations" had to be given greater weight than "other considerations" under Direction 65 – whether Tribunal erred in giving less weight to the applicant's length of residence because the applicant had not spent time positively contributing to the Australian community – whether Tribunal failed to deal with critical claims raised – whether Tribunal made factual findings without evidence – application allowed

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 43 Migration Act 1958 (Cth) ss 476A, 477A, 499, 500, 501, 501CA

Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 Collector of Customs v Pozzolanic (1993) 43 FCR 280 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 FCFY v Minister for Home Affairs [2019] FCA 1222 FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555 Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 Graham v Minister for Immigration and Border Protection [2017] HCA 33 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 Minister for Home Affairs v Buadromo (2018) 362 ALR 48 Minister for Home Affairs v HSKJ (2018) 363 ALR 325 Minister for Home Affairs v Omar [2019] FCAFC 188 Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1995) 57 FCR 432 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Plaintiff M161/2010E v Commonwealth (2010) 243 CLR 319 SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 Singh v Minister for Home Affairs [2019] FCAFC 3 Soliman v University of Technology, Sydney (2012) 207 FCR 277 Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 SZTMD v Minister for Immigration and Border Protection (2015) 150 ALD 34 Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112