Reid v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 16

Reid v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 16

Direction 99 had been signed but had not commenced when the Tribunal heard and determined the applicant's review, while Direction 90 remained in force. The Tribunal was therefore not required to comply with or have regard to Direction 99 as a mandatory relevant consideration or applicable ministerial policy, and there was no power or obligation to remit or defer the matter to await Direction 99. The Tribunal considered the Tolerance Principle under Direction 90 in assessing both the expectations of the Australian community and other considerations, and the weight given to that principle was for the Tribunal. Accordingly, no error was shown in the primary judge's dismissal of the judicial...

Jurisdiction
Australia
Judgment Date
29 February 2024
Procedural Posture
Migration Appeal From Dismissal of an Application for Judicial Review Under S 476 a of the Migration Act 1958 (cth) of a Visa Cancellation Non Revocation Decision / Application for Extension of Time to Appeal and Appeal to the Full Court
Outcome
Extension of time granted; appeal dismissed with costs.
Legal Topics
['visa Cancellation' 'mandatory Cancellation Under S 501(3 A)' 'revocation Under S 501 Ca' 'ministerial Directions Under S 499' 'mandatory Relevant Considerations' 'administrative Appeals Tribunal Review' 'tolerance Principle' 'extension of Time to Appeal']
['migration Law' 'administrative Law'] ['visa Cancellation' 'mandatory Cancellation Under S 501(3 A)' 'revocation Under S 501 Ca' 'ministerial Directions Under S 499' 'mandatory Relevant Considerations' 'administrative Appeals Tribunal Review' 'tolerance Principle' 'extension of Time to Appeal']

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Procedural Posture

Migration Appeal From Dismissal of an Application for Judicial Review Under S 476 a of the Migration Act 1958 (cth) of a Visa Cancellation Non Revocation Decision / Application for Extension of Time to Appeal and Appeal to the Full Court

Legal Issues

  1. 1 ['Whether the primary judge erred by finding that the Tribunal was not required to consider and take into account Ministerial Direction No 99, which had been signed but had not commenced when the Tribunal made its decision.' 'Whether Direction 99 was a mandatory relevant consideration or ministerial policy that the Tribunal was required to have regard to before its commencement date.' 'Whether the primary judge erred by finding that the Tribunal had properly applied the Tolerance Principle in cl 5.2(4) of Direction 90.']

Ratio Decidendi

Direction 99 had been signed but had not commenced when the Tribunal heard and determined the applicant's review, while Direction 90 remained in force. The Tribunal was therefore not required to comply with or have regard to Direction 99 as a mandatory relevant consideration or applicable ministerial policy, and there was no power or obligation to remit or defer the matter to await Direction 99. The Tribunal considered the Tolerance Principle under Direction 90 in assessing both the expectations of the Australian community and other considerations, and the weight given to that principle was for the Tribunal. Accordingly, no error was shown in the primary judge's dismissal of the judicial...

Court Disposition

Extension of time granted; appeal dismissed with costs.

Orders

  • ["Pursuant to r 36.05(1) of the Federal Court Rules 2011 (Cth), the time for the filing of the applicant's notice of appeal is extended." 'The appeal be dismissed.' "The applicant pay the first respondent's costs as agreed or assessed."]