Federal Court of Australia
Federal Court of Australia
Deng v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 Appeal from: Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2097 (5 July 2021)
File number(s): NSD 800 of 2021
Judgment of: HALLEY J
Date of judgment: 23 November 2021
Catchwords: MIGRATION – mandatory cancellation of Woman at Risk (Class XB) (Subclass 204) visa – decision not to revoke mandatory cancellation pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (Act) – where primary considerations of protection of the Australian community, family violence committed by applicant and expectations of the Australian community outweighed primary consideration of best interests of minor children in Australia and other considerations – whether Administrative Appeals Tribunal (Tribunal) constructively failed to exercise its jurisdiction by failing to regard the applicant's health in considering any impediments to the applicant's removal – where evidence given regarding applicant's health inconclusive and qualified – whether Tribunal forgot or overlooked evidence – whether Tribunal acted on a misunderstanding of applicable law by finding the applicant had committed "family violence" – definition of "family violence" – definition of "family member" – definition of "de facto partner" and "de facto relationship" – where "members of a person's family" not limited to relatives and de facto partners – whether a person is "a member of a person's family" is a matter of fact – where Tribunal did not act on a misunderstanding of the applicable law – application dismissed
Legislation: Constitution s 75 Migration Act 1958 (Cth) ss 5CB, 5G, 476A, 499, 501, 501CA Migration Regulations 1994 (Cth) reg 1.09A Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
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