Waqa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 990

Federal Court of Australia

Waqa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 990 Appeal from: Application for extension of time: Waqa v Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 3791

File number: QUD 49 of 2023

Judgment of: LOGAN J

Date of judgment: 31 July 2023

Catchwords: MIGRATION – application for extension of time to review Administrative Appeals Tribunal (Tribunal) decision to affirm the Minister's decision not to revoke the applicant's visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) – whether there is adequate explanation in respect of delay and whether the proposed judicial review application enjoys sufficient prospect of success to warrant the granting of an extension of time – where the applicant is held in immigration detention with limited access to computer resources and suffered ill health – extension of time warranted – where the Minister does not oppose the extension of time – whether the Tribunal fell into jurisdictional error by failing to take into account the interests of two minor children; the applicant's siblings – where paragraph 8.3 of Ministerial Direction 90 (Direction 90) requires a decision-maker to address whether non-revocation is in the best interests of a child affected by decision – where the decision maker must consider the best interests of each child individually to the extent that their interests differ including the extent to which the non-citizen is likely to play a positive parental role in the future; the likely effect that any separation from the non-citizen would have on the child; and any known views of the child – where the applicant and minor siblings gave evidence as to the considerations in para 8.3.4 of Direction 90 – where the Tribunal failed to apply the terms of para 8.3 of Direction 90 – whether the error is material in context of the applicant's criminal offending Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 considered – the applicant need only show a realistic possibility Held: errors material – Tribunal decision quashed