LRMM v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1571

LRMM v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1571

The Tribunal did not commit jurisdictional error by considering the applicant's conduct as a child only as 'other serious conduct' and not as convictions or findings of guilt, and it did consider the claimed risk of violence or harm in Ethiopia when assessing impediments if removed. However, the Tribunal failed to consider clearly articulated representations, supported by the expert report, that the applicant's suspended sentence and probation order were protective factors against re-offending. Because the Tribunal treated risk of re-offending as a factor tipping the balance against revocation, there was a realistic possibility that consideration of those representations could have...

Jurisdiction
Australia
Judgment Date
23 December 2022
Procedural Posture
Migration Judicial Review / Application for Judicial Review of the Administrative Appeals Tribunal Decision Dated 19 August 2022 Affirming a Delegate's Decision Not to Revoke Mandatory Cancellation of a Refugee Visa
Outcome
Ground Two upheld; Grounds One and Three dismissed. The Tribunal's decision was quashed and the matter remitted to the Tribunal, differently constituted, to determine the review according to law. The first respondent's interlocutory application was dismissed and the first respondent was ordered to pay the...
Legal Topics
['mandatory Visa Cancellation' 'revocation Under S 501 Ca(4)' 'character Grounds' 'direction 90' 'jurisdictional Error' 'failure to Consider Representations' 'risk of Re Offending' 'extent of Impediments If Removed' 'non Refoulement' 'juvenile Offending']
['migration Law' 'administrative Law'] ['mandatory Visa Cancellation' 'revocation Under S 501 Ca(4)' 'character Grounds' 'direction 90' 'jurisdictional Error' 'failure to Consider Representations' 'risk of Re Offending' 'extent of Impediments If Removed' 'non Refoulement' 'juvenile Offending']

Case Brief

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Procedural Posture

Migration Judicial Review / Application for Judicial Review of the Administrative Appeals Tribunal Decision Dated 19 August 2022 Affirming a Delegate's Decision Not to Revoke Mandatory Cancellation of a Refugee Visa

Legal Issues

  1. 1 ["Whether the Tribunal erred by taking into account the applicant's offending as a child where no convictions were recorded when considering para 8.1.1 of Direction 90." "Whether the Tribunal failed to lawfully consider the applicant's representations about the protective effect of his suspended sentence and probation order on the likelihood of re-offending." 'Whether the Tribunal failed to consider representations as to harm if removed to Ethiopia when assessing the extent of impediments under para 9.2 of Direction 90.']

Ratio Decidendi

The Tribunal did not commit jurisdictional error by considering the applicant's conduct as a child only as 'other serious conduct' and not as convictions or findings of guilt, and it did consider the claimed risk of violence or harm in Ethiopia when assessing impediments if removed. However, the Tribunal failed to consider clearly articulated representations, supported by the expert report, that the applicant's suspended sentence and probation order were protective factors against re-offending. Because the Tribunal treated risk of re-offending as a factor tipping the balance against revocation, there was a realistic possibility that consideration of those representations could have...

Court Disposition

Ground Two upheld; Grounds One and Three dismissed. The Tribunal's decision was quashed and the matter remitted to the Tribunal, differently constituted, to determine the review according to law. The first respondent's interlocutory application was dismissed and the first respondent was ordered to pay the...

Orders

  • ["The first respondent's interlocutory application filed 21 November 2022 be dismissed." 'A writ of certiorari issue directed to the second respondent, quashing its decision made on 19 August 2022.' "A writ of mandamus issue directed to the second respondent, differently constituted, requiring it to determine the...