Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115

Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115

Ground 1 failed because the Tribunal expressly referred to the appellant's health when assessing impediments to removal, accurately recorded his evidence, and was not shown to have ignored the evidence of trauma counselling or to have confined consideration only to diagnosed conditions. Ground 2 succeeded because the Tribunal did not consider the contestable question whether Ms S was a "member of [the appellant's] family" for the purposes of the definition of "family violence" in Direction 90 and appeared erroneously to reason that, because she was an intimate partner, violence against her was family violence. That error was material because the Tribunal relied on family violence in...

Jurisdiction
Australia
Judgment Date
11 July 2022
Procedural Posture
Appeal From Dismissal of Application for Judicial Review of Administrative Appeals Tribunal Decision Affirming Non Revocation of Mandatory Visa Cancellation / Full Court Appeal
Outcome
Appeal allowed; primary judge's orders set aside; Tribunal's decision quashed; matter remitted to the Tribunal differently constituted.
Legal Topics
['mandatory Visa Cancellation Under S 501(3 A) of the Migration Act 1958 (cth)' 'revocation Under S 501 CA of the Migration Act 1958 (cth)' 'direction No 90' 'family Violence' 'jurisdictional Error' 'constructive Failure to Exercise Jurisdiction' 'extent of Impediments If Removed']
['migration Law' 'administrative Law'] ['mandatory Visa Cancellation Under S 501(3 A) of the Migration Act 1958 (cth)' 'revocation Under S 501 CA of the Migration Act 1958 (cth)' 'direction No 90' 'family Violence' 'jurisdictional Error' 'constructive Failure to Exercise Jurisdiction' 'extent of Impediments If Removed']

Case Brief

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Procedural Posture

Appeal From Dismissal of Application for Judicial Review of Administrative Appeals Tribunal Decision Affirming Non Revocation of Mandatory Visa Cancellation / Full Court Appeal

Legal Issues

  1. 1 ["Whether the Tribunal constructively failed to exercise jurisdiction by failing to consider the appellant's health, specifically his mental health, when considering the extent of impediments if removed to South Sudan." 'Whether the Tribunal acted on a misunderstanding of the applicable law by treating Ms S as a family member for the purposes of the definition of "family violence" in Direction No 90.' "Whether any error in the Tribunal's treatment of family violence was material."]

Ratio Decidendi

Ground 1 failed because the Tribunal expressly referred to the appellant's health when assessing impediments to removal, accurately recorded his evidence, and was not shown to have ignored the evidence of trauma counselling or to have confined consideration only to diagnosed conditions. Ground 2 succeeded because the Tribunal did not consider the contestable question whether Ms S was a "member of [the appellant's] family" for the purposes of the definition of "family violence" in Direction 90 and appeared erroneously to reason that, because she was an intimate partner, violence against her was family violence. That error was material because the Tribunal relied on family violence in...

Court Disposition

Appeal allowed; primary judge's orders set aside; Tribunal's decision quashed; matter remitted to the Tribunal differently constituted.

Orders

  • ['The appeal be allowed.' 'The orders made by the primary judge on 23 November 2021 be set aside and in lieu thereof it be ordered that the decision of the second respondent (the Tribunal) dated 5 July 2021 be quashed.' "The first respondent pay the applicant's costs, as agreed or taxed." 'The matter be remitted to...