Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1389

Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1389

Although the Tribunal erred in finding that it did not have the views of the applicant's biological children before it, the applicant did not establish that the error was material. The Tribunal had considered the substance of the eldest child's wish to have a relationship with the applicant in other parts of its reasons, and its findings that Primary Considerations A and C weighed very heavily and determinatively against revocation meant there was no realistic possibility that proper consideration of paragraph 13.2(4)(f) would have led to a different decision. The applicant also failed to establish that the Tribunal did not properly consider the best interests of his eldest child or the...

Jurisdiction
Australia
Judgment Date
10 November 2021
Procedural Posture
Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming a Delegate's Decision Not to Revoke Mandatory Cancellation of a Visa / Federal Court Application Under S 476 A(1)(b) of the Migration Act 1958 (cth); Application Dismissed
Outcome
Application dismissed with costs.
Legal Topics
['mandatory Visa Cancellation' 'character Test' 'revocation Under S 501 Ca' 'direction 79' 'best Interests of Minor Children' 'jurisdictional Error' 'materiality']
['migration Law' 'administrative Law' 'judicial Review'] ['mandatory Visa Cancellation' 'character Test' 'revocation Under S 501 Ca' 'direction 79' 'best Interests of Minor Children' 'jurisdictional Error' 'materiality']

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Procedural Posture

Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming a Delegate's Decision Not to Revoke Mandatory Cancellation of a Visa / Federal Court Application Under S 476 A(1)(b) of the Migration Act 1958 (cth); Application Dismissed

Legal Issues

  1. 1 ["Whether the Tribunal misconstrued paragraph 13.2(4)(f) of Direction 79 by finding that it did not have the views of the applicant's biological children before it." "Whether the Tribunal failed to properly consider the best interests of the applicant's eldest child and the applicant's representations and evidence concerning that child." 'Whether any error by the Tribunal was material so as to constitute jurisdictional error.']

Ratio Decidendi

Although the Tribunal erred in finding that it did not have the views of the applicant's biological children before it, the applicant did not establish that the error was material. The Tribunal had considered the substance of the eldest child's wish to have a relationship with the applicant in other parts of its reasons, and its findings that Primary Considerations A and C weighed very heavily and determinatively against revocation meant there was no realistic possibility that proper consideration of paragraph 13.2(4)(f) would have led to a different decision. The applicant also failed to establish that the Tribunal did not properly consider the best interests of his eldest child or the...

Court Disposition

Application dismissed with costs.

Orders

  • ['The application is dismissed.' "The applicant is to pay the first respondent's costs, to be agreed or assessed."]