HDWH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1659

HDWH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1659

The Tribunal misconstrued paragraph 9.4.1(2)(a)(i) of Ministerial Direction 90 by finding the applicant was entitled to limited weight because offending commenced nearly 12 years after arrival but while still a minor; 'soon after' cannot mean a passage of 12 years, and this was a material error affecting the merits review, requiring the Tribunal's decision to be quashed and the matter remitted.

Jurisdiction
Australia
Judgment Date
29 November 2021
Procedural Posture
Application for Judicial Review / Judgment on Judicial Review
Outcome
Application granted
Legal Topics
['visa Cancellation' 'judicial Review' 'ministerial Direction 90' 'jurisdictional Error']
['migration Law' 'administrative Law'] ['visa Cancellation' 'judicial Review' 'ministerial Direction 90' 'jurisdictional Error']

Case Brief

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Procedural Posture

Application for Judicial Review / Judgment on Judicial Review

Legal Issues

  1. 1 ['Whether the Tribunal failed to apply the principle of paragraph 5.2 of Ministerial Direction 90' 'Whether the Tribunal misconstrued paragraph 9.4.1 of Ministerial Direction 90 by finding the applicant committed offending soon after arrival in Australia']

Ratio Decidendi

The Tribunal misconstrued paragraph 9.4.1(2)(a)(i) of Ministerial Direction 90 by finding the applicant was entitled to limited weight because offending commenced nearly 12 years after arrival but while still a minor; 'soon after' cannot mean a passage of 12 years, and this was a material error affecting the merits review, requiring the Tribunal's decision to be quashed and the matter remitted.

Court Disposition

Application granted

Orders

  • ["A writ of certiorari issue quashing the Tribunal's decision." 'A writ of mandamus issue directing the Tribunal to re-determine the application according to law.' "The first respondent to pay the applicant's costs, to be fixed by a Registrar if not agreed."]