NBCM v Minister for Home Affairs [2019] FCA 1013

NBCM v Minister for Home Affairs [2019] FCA 1013

The Tribunal fell into jurisdictional error by failing to consider and make a determination about the best interests of the applicant's minor grandchildren, by taking into account an irrelevant consideration (evidence of the adult child's experience), and by failing to consider the likely effect of separation on each child as required by Direction 65. These errors could realistically have made a difference to the outcome and thus justify judicial review and remittal.

Parties
Applicant: NBCM; First Respondent: Minister for Home Affairs; Second Respondent: Administrative Appeals Tribunal
Jurisdiction
Australia
Judgment Date
28 June 2019
Procedural Posture
Judicial Review / Federal Court Judgment
Outcome
Application allowed
Legal Topics
Visa Cancellation, Judicial Review, Best Interests of Children, Ministerial Direction 65, Jurisdictional Error
Migration Law Administrative Law Visa Cancellation Judicial Review Best Interests of Children Ministerial Direction 65 Jurisdictional Error

Case Brief

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Parties

NBCM

Applicant

Minister for Home Affairs

First Respondent

Administrative Appeals Tribunal

Second Respondent

Procedural Posture

Judicial Review / Federal Court Judgment

Legal Issues

  1. 1 Whether the Tribunal failed to properly consider the best interests of minor children and grandchildren as required by Direction 65 under s 501(2) of the Migration Act 1958 (Cth)
  2. 2 Whether the Tribunal took into account irrelevant considerations in determining the best interests of minor children
  3. 3 Whether the Tribunal provided sufficient reasons for its conclusions on the weight to give to the best interests of the minor children

Ratio Decidendi

The Tribunal fell into jurisdictional error by failing to consider and make a determination about the best interests of the applicant's minor grandchildren, by taking into account an irrelevant consideration (evidence of the adult child's experience), and by failing to consider the likely effect of separation on each child as required by Direction 65. These errors could realistically have made a difference to the outcome and thus justify judicial review and remittal.

Court Disposition

Application allowed

Orders

  • A writ of certiorari to issue quashing the decision of the second respondent dated 23 July 2018.
  • A writ of mandamus requiring the second respondent to make a decision according to law on whether the applicant's visa should be cancelled.