GCRM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 678

FEDERAL COURT OF AUSTRALIA

GCRM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 678 Review from: GCRM and Minister for Home Affairs [2019] AATA 1394

File number: WAD 371 of 2019

Judge: JACKSON J

Date of judgment: 20 May 2020

Catchwords: MIGRATION - judicial review - decision of the Administrative Appeals Tribunal - mandatory cancellation of visa - applicant did not pass character test on basis of criminal record - Ministerial Direction No 79 - primary considerations - where Tribunal failed to make determination about the best interests of minor children if applicant returned to South Sudan - whether Tribunal's finding that best interests of children was of neutral weight complied with Ministerial Direction No 79 - conflation of whether best interests of children were in favour of revocation with distinct question of the weight to be given to best interests of children - error found not to be material so not jurisdictional error - Tribunal gave adequate consideration to mandatory consideration of effect of separation on children MIGRATION - consideration of representations about harm that would be suffered on return to South Sudan - whether Tribunal failed to engage in active intellectual process - Tribunal incorrectly found no independent evidence of political instability although such evidence was put to it - no misunderstanding of Migration Act 1958 (Cth) in connection with non-refoulement obligations - Tribunal failed to consider representations adequately - Tribunal fell into jurisdictional error - decision of Tribunal set aside

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 43 Migration Act 1958 (Cth) ss 499, 501, 501CA Ministerial Direction No. 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Cth)