XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1047

Federal Court of Australia

XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1047 Review of: Application for judicial review: XXBN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4238

File number: NSD 1259 of 2020

Judgment of: MURPHY J

Date of judgment: 1 September 2021

Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision to not revoke the cancellation of the applicant's visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) – whether the Tribunal failed to afford the applicant procedural fairness – whether there was a rational or probative connection between the evidence and the finding that there was a "real possibility" that the applicant would re-partner – whether the Tribunal gave appropriate weight to the best interests of minor children pursuant to Ministerial Direction No 79 – whether the Tribunal failed to have regard to evidence and submissions about the "impact on victims" under Direction No 79 – appeal dismissed

Legislation: Evidence Act 1995 (Cth) s 59 Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c) Migration Act 1958 (Cth) ss 499, 499(2A), 500(6L), 501, 501(3A), 501(6)(a), 501(7)(c), 501CA

Cases cited: Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 1842 Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 162; 36 ALR 598 Consolidated Edison Co v National Labour Relations Board 305 US 197 DBX16 v Minister for Immigration [2021] FCA 238 DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97 DQM18 v Minister for Home Affairs [2020] FCAFC 110; 278 FCR 529 Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 385 ALR 405 Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 106; 44 FLR 41 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33; 36 FLR 482 PQSM v Minister for Home Affairs [2020] FCAFC 125; 279 FCR 175 Re Tarrant and Australian Securities and Investments Decision [2013] AATA 926; 62 AAR 192 Republic of Nauru v WET40 (No 2) [2018] HCA 60; 362 ALR 235 RZSN v Minister for Home Affairs [2019] FCA 1731 Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; 226 FCR 555 Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 144; 278 FCR 386 WQRJ the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736