Win in the Federal Court
On 9 September 2020, we had a win for our client, Mr G, in the Federal Court of Australia in the matter of G v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1298.
Mr G had his special category visa cancelled under the mandatory cancellation provisions of the Migration Act 1958 (Cth). This was due to failing the character test by virtue of a substantial criminal record in combination with serving a term of imprisonment. Mr G requested that the Department of Immigration revoke the cancellation of his visa. The Department declined to do so. Mr G then applied to the Administrative Appeals Tribunal for review of the Department’s decision.
The Administrative Appeals Tribunal after considering the matter closely decided to find against Mr G and affirm the decision under review. Ultimately, the Tribunal was not satisfied that there was another reason to revoke the cancellation of Mr G’s visa.
Mr G then applied for judicial review of the Tribunal’s decision in the Federal Court of Australia. This is where we became involved in the matter. After close analysis of the Tribunal’s extensive reasons for decision (over 250 paragraphs), we identified a possible flaw in the Tribunal’s reasoning at paragraph 248. We argued that the Tribunal had impermissibly diminished the weight to be given to the best interests of Mr G’s children by reference to high-level and generalised considerations. In so doing, we argued, the Tribunal had failed to comply with ministerial direction 79 and made a jurisdictional error.
The Court agreed with our arguments. The Court found that the Tribunal had made the error alleged and that error had affected the outcome of its review. In other words, had the Tribunal not made the error, there was a realistic possibility of a successful outcome for Mr G. The Court set aside the Tribunal’s decision and remitted it to the Tribunal for reconsideration according to law. Mr G will now have another opportunity to regain his special category visa (New Zealander visa).