Flores v Minister for Home Affairs [2019] FCA 1043

Flores v Minister for Home Affairs [2019] FCA 1043

The Tribunal failed in material respects to comply with Direction No. 65 and thereby failed to exercise the jurisdiction conferred on it to determine whether there was another reason to revoke the cancellation of the applicant's visa. It did not actively determine or give individual consideration to the best interests of the relevant children, it purported to reject the applicant's non-refoulement claim without engaging with the material or giving adequate reasons, and it failed to address claimed impediments to re-establishment in the Philippines. Those failures were material jurisdictional errors requiring certiorari, mandamus and restraint against acting on the Tribunal's decision.

Jurisdiction
Australia
Judgment Date
05 July 2019
Procedural Posture
Application for Judicial Review of a Migration Decision Under S 476 a of the Migration Act 1958 (cth) / Judicial Review of Administrative Appeals Tribunal Decision Affirming Refusal to Revoke Mandatory Visa Cancellation
Outcome
Application allowed; Tribunal decision quashed and matter remitted to the Tribunal for re-determination according to law; first respondent ordered to pay the applicant's costs.
Legal Topics
['judicial Review' 'mandatory Visa Cancellation' 'character Test' 'revocation Under S 501 Ca(4)' 'direction No. 65' 'best Interests of Minor Children' 'non Refoulement Obligations' 'jurisdictional Error' 'adequacy of Reasons']
['migration Law' 'administrative Law'] ['judicial Review' 'mandatory Visa Cancellation' 'character Test' 'revocation Under S 501 Ca(4)' 'direction No. 65' 'best Interests of Minor Children' 'non Refoulement Obligations' 'jurisdictional Error' 'adequacy of Reasons']

Case Brief

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Procedural Posture

Application for Judicial Review of a Migration Decision Under S 476 a of the Migration Act 1958 (cth) / Judicial Review of Administrative Appeals Tribunal Decision Affirming Refusal to Revoke Mandatory Visa Cancellation

Legal Issues

  1. 1 ['Whether time should be extended under s 477A(2) of the Migration Act 1958 (Cth) for the filing of the judicial review application.' "Whether the Tribunal failed to comply with Direction No. 65 by not determining whether revocation was, or was not, in the best interests of the applicant's minor children and other minor family members." "Whether the Tribunal failed to engage with the applicant's claims concerning Australia's non-refoulement obligations and failed to give adequate reasons." "Whether the Tribunal failed to consider the strength, nature and duration of the applicant's ties to Australia." 'Whether the Tribunal failed to consider the extent of impediments the applicant may face if removed to the Philippines.' 'Whether any failures amounted to jurisdictional error.']

Ratio Decidendi

The Tribunal failed in material respects to comply with Direction No. 65 and thereby failed to exercise the jurisdiction conferred on it to determine whether there was another reason to revoke the cancellation of the applicant's visa. It did not actively determine or give individual consideration to the best interests of the relevant children, it purported to reject the applicant's non-refoulement claim without engaging with the material or giving adequate reasons, and it failed to address claimed impediments to re-establishment in the Philippines. Those failures were material jurisdictional errors requiring certiorari, mandamus and restraint against acting on the Tribunal's decision.

Court Disposition

Application allowed; Tribunal decision quashed and matter remitted to the Tribunal for re-determination according to law; first respondent ordered to pay the applicant's costs.

Orders

  • ["A writ of certiorari issue quashing the decision of the second respondent, made on 11 May 2018, not to revoke the cancellation of the applicant's Class BB, Subclass 155 (Five Year Return) visa (the visa) (the decision)." 'The first respondent, his officers, delegates or agents be restrained from acting upon or...