Guruge v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 233

Guruge v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 233

Leave to amend the notice of appeal was granted, but the appeal was dismissed because neither s 501CA of the Migration Act 1958 (Cth) nor Direction 79 required the Tribunal to consider the Convention on the Rights of the Child or any executive dimension of breach of that convention. FAK19 was distinguishable because it concerned express non-refoulement matters identified in the relevant direction, whereas Direction 79 contained no reference to the child convention. The Tribunal considered the best interests of KS as required by the direction, and no further mandatory consideration arose. The primary judge's costs order involved no House v The King error; pro bono representation did not...

Jurisdiction
Australia
Judgment Date
18 November 2021
Procedural Posture
Migration Judicial Review Appeal; Costs Appeal / Appeal From Orders Dismissing Application for Judicial Review of Administrative Appeals Tribunal Decision Affirming Non Revocation of Mandatory Visa Cancellation
Outcome
Leave to amend the notice of appeal granted; appeal dismissed with costs.
Legal Topics
['mandatory Visa Cancellation' 'revocation Under S 501 CA of the Migration Act 1958 (cth)' 'ministerial Direction 79' 'jurisdictional Error' 'mandatory Relevant Considerations' 'convention on the Rights of the Child' 'pro Bono Representation and Costs Discretion']
['migration' 'administrative Law' 'costs'] ['mandatory Visa Cancellation' 'revocation Under S 501 CA of the Migration Act 1958 (cth)' 'ministerial Direction 79' 'jurisdictional Error' 'mandatory Relevant Considerations' 'convention on the Rights of the Child' 'pro Bono Representation and Costs Discretion']

Case Brief

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Procedural Posture

Migration Judicial Review Appeal; Costs Appeal / Appeal From Orders Dismissing Application for Judicial Review of Administrative Appeals Tribunal Decision Affirming Non Revocation of Mandatory Visa Cancellation

Legal Issues

  1. 1 ['Whether leave should be granted to amend the notice of appeal to raise grounds not argued before the primary judge.' "Whether the Tribunal was required to consider the executive dimension of a decision said to be contrary to the United Nations Convention on the Rights of the Child after finding that revocation was in the best interests of the appellant's son." 'Whether Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 required a different result.' 'Whether the primary judge made a discretionary error by ordering costs against an unsuccessful party who was represented pro bono.']

Ratio Decidendi

Leave to amend the notice of appeal was granted, but the appeal was dismissed because neither s 501CA of the Migration Act 1958 (Cth) nor Direction 79 required the Tribunal to consider the Convention on the Rights of the Child or any executive dimension of breach of that convention. FAK19 was distinguishable because it concerned express non-refoulement matters identified in the relevant direction, whereas Direction 79 contained no reference to the child convention. The Tribunal considered the best interests of KS as required by the direction, and no further mandatory consideration arose. The primary judge's costs order involved no House v The King error; pro bono representation did not...

Court Disposition

Leave to amend the notice of appeal granted; appeal dismissed with costs.

Orders

  • ['Leave to amend the notice of appeal in terms of the draft amended notice of appeal be granted.' 'The appeal be dismissed.' "The appellant pay the first respondent's costs of and incidental to the appeal, to be fixed by a Registrar if not agreed."]