Kim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 583

Kim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 583

The Tribunal was required by cl 14.5(1)(a) of Direction No. 79 to take into account Mr Kim's age and health when considering impediments if removed. There was evidence of serious health issues, including untreated alcoholism and evidence of Major Depressive Disorder, and those issues could have constituted significant impediments to establishing himself in South Korea and maintaining basic living standards. The Tribunal's failure to mention those health issues in its discussion of cl 14.5(1)(a) supported the inference that it did not consider the impact of Mr Kim's health. Because the Tribunal found factors both for and against revocation, there was a realistic possibility of a different...

Jurisdiction
Australia
Judgment Date
01 May 2020
Procedural Posture
Migration Judicial Review / Application for Judicial Review of Administrative Appeals Tribunal Decision Affirming Non Revocation of Visa Cancellation
Outcome
Application for review succeeds.
Legal Topics
['visa Cancellation on Character Grounds' 'mandatory Visa Cancellation Revocation' 'relevant Considerations' 'jurisdictional Error' 'extent of Impediments If Removed' 'health Issues']
['migration Law' 'administrative Law'] ['visa Cancellation on Character Grounds' 'mandatory Visa Cancellation Revocation' 'relevant Considerations' 'jurisdictional Error' 'extent of Impediments If Removed' 'health Issues']

Case Brief

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Procedural Posture

Migration Judicial Review / Application for Judicial Review of Administrative Appeals Tribunal Decision Affirming Non Revocation of Visa Cancellation

Legal Issues

  1. 1 ["Whether the Administrative Appeals Tribunal failed to take into account a relevant consideration by not addressing Mr Kim's health problems when considering the extent of impediments he may face if removed from Australia." "Whether any failure to consider Mr Kim's health under cl 14.5(1)(a) of Direction No. 79 was material to the Tribunal's decision."]

Ratio Decidendi

The Tribunal was required by cl 14.5(1)(a) of Direction No. 79 to take into account Mr Kim's age and health when considering impediments if removed. There was evidence of serious health issues, including untreated alcoholism and evidence of Major Depressive Disorder, and those issues could have constituted significant impediments to establishing himself in South Korea and maintaining basic living standards. The Tribunal's failure to mention those health issues in its discussion of cl 14.5(1)(a) supported the inference that it did not consider the impact of Mr Kim's health. Because the Tribunal found factors both for and against revocation, there was a realistic possibility of a different...

Court Disposition

Application for review succeeds.

Orders

  • ['A writ of certiorari, directed to the Administrative Appeals Tribunal, issue to quash the decision of the Administrative Appeals Tribunal the subject of the proceeding and the matter be remitted to the Administrative Appeals Tribunal for determination according to law.' "The first respondent pay the applicant's...