CBM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1832

CBM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1832

The Tribunal made no jurisdictional error in affirming refusal of the Bridging visa. Brown bound the Court to hold that the applicant's wholly suspended 12 month imprisonment sentences constituted a substantial criminal record under s 501(7)(c). The allegedly comparable AAT decisions were not materially alike, so the decision was not unreasonable on consistency grounds. Direction 79 made the applicant's Protection visa and non-refoulement position relevant. Any error in not receiving earlier Tribunal decisions was not material because the applicant made the consistency argument and the decisions could not have shown that like cases had been decided favourably. The Tribunal was not...

Jurisdiction
Australia
Judgment Date
28 October 2019
Procedural Posture
Migration Judicial Review / Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Bridging Visa
Outcome
Application dismissed.
Legal Topics
['character Test' 'substantial Criminal Record' 'suspended Sentence' 'bridging Visa Refusal' 'jurisdictional Error' 'unreasonableness' 'procedural Fairness' 'non Refoulement' 'ministerial Direction 79' 'risk Assessment']
['migration Law' 'administrative Law'] ['character Test' 'substantial Criminal Record' 'suspended Sentence' 'bridging Visa Refusal' 'jurisdictional Error' 'unreasonableness' 'procedural Fairness' 'non Refoulement' 'ministerial Direction 79' 'risk Assessment']

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Procedural Posture

Migration Judicial Review / Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Bridging Visa

Legal Issues

  1. 1 ['Whether a wholly suspended sentence of imprisonment for 12 months or more constituted a sentence for the purposes of s 501(7)(c) of the Migration Act 1958 (Cth).' "Whether the Tribunal's decision was legally unreasonable because allegedly similar cases had different outcomes." "Whether the Tribunal took into account irrelevant considerations by referring to the applicant's Protection visa application and non-refoulement issues." 'Whether the Tribunal denied procedural fairness by not receiving copies of earlier Tribunal decisions offered by the applicant at the hearing.' 'Whether the Tribunal failed to make an obvious inquiry or otherwise failed to discharge its review function.' 'Whether the Tribunal erred in assessing future risk rather than requiring certainty that the applicant would reoffend.']

Ratio Decidendi

The Tribunal made no jurisdictional error in affirming refusal of the Bridging visa. Brown bound the Court to hold that the applicant's wholly suspended 12 month imprisonment sentences constituted a substantial criminal record under s 501(7)(c). The allegedly comparable AAT decisions were not materially alike, so the decision was not unreasonable on consistency grounds. Direction 79 made the applicant's Protection visa and non-refoulement position relevant. Any error in not receiving earlier Tribunal decisions was not material because the applicant made the consistency argument and the decisions could not have shown that like cases had been decided favourably. The Tribunal was not...

Court Disposition

Application dismissed.

Orders

  • ['The application for judicial review be dismissed.' "The applicant pay the first respondent's costs, of and incidental to the application, to be taxed if not agreed."]