Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13

Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13

The Tribunal was required to consider the effect of non-revocation on the appellant's mother and failed to do so. That error was material because the material before the Tribunal went beyond bare assertion and supported an inference of emotional and practical hardship to the appellant's mother. The hardship claim was relevant to the weight to be given to both primary consideration (c), expectations of the Australian community, and other consideration (b), strength, nature and duration of ties. If the Tribunal had considered the hardship to the appellant's mother, it could realistically have given less weight against revocation and greater weight in favour of revocation, creating a...

Jurisdiction
Australia
Judgment Date
17 February 2022
Procedural Posture
Appeal From a Decision of a Single Judge of the Federal Court Exercising Original Jurisdiction Under S 476 a of the Migration Act 1958 (cth) to Review a Decision of the Administrative Appeals Tribunal / Full Court Appeal; Application for Leave to Amend Notice of Appeal; Application for Leave to Adduce Further Evidence
Outcome
Appeal allowed; Tribunal decision quashed and matter remitted to the Tribunal for determination according to law; leave granted only for ground 1 of the amended notice of appeal; leave refused for grounds 2, 3 and 4.
Legal Topics
['mandatory Visa Cancellation' 'revocation Under S 501 Ca(4) of the Migration Act 1958 (cth)' 'character Test' 'ministerial Direction No. 79' 'materiality of Jurisdictional Error' 'effect of Non Revocation on Immediate Family' 'leave to Amend Notice of Appeal' 'further Evidence on Appeal']
['migration' 'administrative Law' 'practice and Procedure'] ['mandatory Visa Cancellation' 'revocation Under S 501 Ca(4) of the Migration Act 1958 (cth)' 'character Test' 'ministerial Direction No. 79' 'materiality of Jurisdictional Error' 'effect of Non Revocation on Immediate Family' 'leave to Amend Notice of Appeal' 'further Evidence on Appeal']

Case Brief

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Procedural Posture

Appeal From a Decision of a Single Judge of the Federal Court Exercising Original Jurisdiction Under S 476 a of the Migration Act 1958 (cth) to Review a Decision of the Administrative Appeals Tribunal / Full Court Appeal; Application for Leave to Amend Notice of Appeal; Application for Leave to Adduce Further Evidence

Legal Issues

  1. 1 ["Whether the primary judge erred in finding that the Tribunal's failure to consider the effect of non-revocation on the appellant's mother was not material." "Whether the effect of non-revocation on the appellant's mother was relevant to the Tribunal's attribution of weight to primary consideration (c), expectations of the Australian community, and other consideration (b), strength, nature and duration of ties, under Direction no. 79." 'Whether leave should be granted to rely on amended grounds of appeal.' 'Whether leave should be granted to adduce further evidence comprising the transcript of the Tribunal hearing.']

Ratio Decidendi

The Tribunal was required to consider the effect of non-revocation on the appellant's mother and failed to do so. That error was material because the material before the Tribunal went beyond bare assertion and supported an inference of emotional and practical hardship to the appellant's mother. The hardship claim was relevant to the weight to be given to both primary consideration (c), expectations of the Australian community, and other consideration (b), strength, nature and duration of ties. If the Tribunal had considered the hardship to the appellant's mother, it could realistically have given less weight against revocation and greater weight in favour of revocation, creating a...

Court Disposition

Appeal allowed; Tribunal decision quashed and matter remitted to the Tribunal for determination according to law; leave granted only for ground 1 of the amended notice of appeal; leave refused for grounds 2, 3 and 4.

Orders

  • ['The appellant has leave to rely on ground 1 of the amended notice of appeal filed 7 May 2021.' 'The appellant is refused leave to rely on grounds 2, 3 and 4 of the amended notice of appeal.' 'The appeal be allowed.' 'Orders 1 and 2 made by the primary judge on 24 February 2021 be set aside.' 'The decision of the...