Federal Court of Australia
Federal Court of Australia
RGKY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 750 Appeal from: The Administrative Appeals Tribunal decision delivered on 26 October 2020
File number(s): NSD 1283 of 2020
Judgment of: RARES J
Date of judgment: 28 June 2021
Catchwords: MIGRATION – where Administrative Appeals Tribunal affirmed decision by delegate of Minister not to revoke visa cancellation under s 501CA(4) Migration Act 1958 (Cth) – where Ministerial Direction under s 499 of Act required Tribunal to make a determination about whether revocation is in the best interests of child affected by decision – where Tribunal after two day hearing said it was unable to make any assessment at all as to impact on child of father's removal from Australia – whether Tribunal engaged in active intellectual process – where applicant and multiple witnesses gave evidence that father's character had changed because of impact of imprisonment and immigration detention separating him from infant – where Tribunal made no finding about claim of change of character – whether Tribunal made jurisdictional error – Held: Tribunal made jurisdictional errors
Legislation: Migration Act 1958 (Cth) ss 476A(1)(b), 499(1), 499(2A), 500(1)(ba), 501(3A), 501CA(3)(b), 501CA(4)(b)(ii) Direction 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Cases cited: CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 Guclukol v Minister for Home Affairs [2020] FCAFC 148 Hands v Minister for Immigration and Border Protection (2019) 267 FCR 628 Minister for Home Affairs v Omar (2019) 272 FCR 589 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 Plaintiff M64/2015 v Minister of Immigration and Border Protection (2015) 258 CLR 173 Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31 Uelese v Minister for Immigration (2015) 256 CLR 203 Webb v Minister for Home Affairs [2020] FCA 831
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