HVLC v Minister for Home Affairs [2019] FCAFC 204

HVLC v Minister for Home Affairs [2019] FCAFC 204

The Tribunal did not make material jurisdictional error. Although it misunderstood the "Impact on Victims" consideration in Direction No 65 by treating it as concerned with past harm rather than the impact of granting a visa, the actual impact of the appellant's serious sexual offending on the child victim was not an impermissible consideration under s 501 and had not been double counted. The placement of that relevant consideration under the wrong heading could not reasonably have affected the decision.

Jurisdiction
Australia
Judgment Date
08 November 2019
Procedural Posture
Migration Appeal Concerning Refusal of Class XE (subclass 790) Safe Haven Enterprise Visa Under S 501 of the Migration Act 1958 (cth) / Appeal to the Full Court of the Federal Court From HVLC V Minister for Home Affairs [2019] FCA 616; Application for Extension of Time to Appeal
Outcome
Extension of time granted; appeal dismissed.
Legal Topics
['character Test' 'substantial Criminal Record' 'ministerial Direction No 65' 'jurisdictional Error' 'relevant and Irrelevant Considerations' 'materiality' 'impact on Victims' 'visa Refusal']
['migration Law' 'administrative Law'] ['character Test' 'substantial Criminal Record' 'ministerial Direction No 65' 'jurisdictional Error' 'relevant and Irrelevant Considerations' 'materiality' 'impact on Victims' 'visa Refusal']

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Procedural Posture

Migration Appeal Concerning Refusal of Class XE (subclass 790) Safe Haven Enterprise Visa Under S 501 of the Migration Act 1958 (cth) / Appeal to the Full Court of the Federal Court From HVLC V Minister for Home Affairs [2019] FCA 616; Application for Extension of Time to Appeal

Legal Issues

  1. 1 ['Whether the Tribunal made jurisdictional error by misconstruing or misunderstanding paragraph 12.3 of Ministerial Direction No 65 concerning impact on victims.' "Whether the impact of the appellant's offending on the victim and his family was an impermissible consideration under s 501 of the Migration Act 1958 (Cth)." 'Whether the Tribunal engaged in double counting or double weighting by considering the effect of the offending on the victim and his family.' 'Whether any error in placing consideration of actual victim impact under the heading "Impact on Victims" was material.']

Ratio Decidendi

The Tribunal did not make material jurisdictional error. Although it misunderstood the "Impact on Victims" consideration in Direction No 65 by treating it as concerned with past harm rather than the impact of granting a visa, the actual impact of the appellant's serious sexual offending on the child victim was not an impermissible consideration under s 501 and had not been double counted. The placement of that relevant consideration under the wrong heading could not reasonably have affected the decision.

Court Disposition

Extension of time granted; appeal dismissed.

Orders

  • ["Leave be granted to the Applicant to file the notice of appeal, appeal book and Applicant's outline of submissions out of time." 'The appeal be dismissed.' 'The Applicant pay the costs of the First Respondent, as agreed or assessed.']