BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 14

BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 14

The Tribunal misconstrued Direction 99 by failing to evaluate the appellant’s representations about premeditation and targeting, erred in finding offending was 'very serious' solely by engaging paragraph 8.1.1(1)(a) and did not weigh intention or circumstances. Such error was material because it affected the discretion exercised under s 501CA(4), with realistic possibility of a different outcome.

Parties
Appellant: BNY23; First Respondent: Minister for Immigration, Citizenship and Multicultural Affairs; Second Respondent: Administrative Appeals Tribunal
Jurisdiction
Australia
Judgment Date
19 February 2025
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed by majority; judgment set aside; orders made for writs and costs.
Legal Topics
Visa Cancellation, Ministerial Directions, Revocation of Mandatory Cancellation, Character Test, Jurisdictional Error, Materiality, Procedural Fairness
Migration Visa Cancellation Ministerial Directions Revocation of Mandatory Cancellation Character Test Jurisdictional Error Materiality Procedural Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

BNY23

Appellant

Minister for Immigration, Citizenship and Multicultural Affairs

First Respondent

Administrative Appeals Tribunal

Second Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether Administrative Appeals Tribunal failed to evaluate representations made by appellant regarding lack of premeditation and targeting in offending
  2. 2 Whether Tribunal made unsupported findings about language barriers faced by appellant if removed to Ethiopia
  3. 3 Whether Tribunal failed to consider risk of harm and discrimination as an impediment to establishing and maintaining basic living standards in Ethiopia

Ratio Decidendi

The Tribunal misconstrued Direction 99 by failing to evaluate the appellant’s representations about premeditation and targeting, erred in finding offending was 'very serious' solely by engaging paragraph 8.1.1(1)(a) and did not weigh intention or circumstances. Such error was material because it affected the discretion exercised under s 501CA(4), with realistic possibility of a different outcome.

Court Disposition

Appeal allowed by majority; judgment set aside; orders made for writs and costs.

Orders

  • The appeal be allowed.
  • The judgment in BNY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 301 be set aside.