PKBV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2047

PKBV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2047

The Tribunal's decision was affected by jurisdictional error because it failed to comply with Direction 79 and failed to give real consideration to material and submissions before it. In particular, the Tribunal applied the low tolerance principle without considering the potentially applicable para 6.3(5) qualification for a non-citizen who had lived in Australia from a young age; failed to consider the likely effect of separation on minor children, including consequences flowing from the applicant's partner's mother's evidence; failed to consider the strength, nature and duration of the applicant's family and social ties in Australia; and recited but did not grapple with submissions...

Jurisdiction
Australia
Judgment Date
13 December 2019
Procedural Posture
Application for Extension of Time and Judicial Review of Administrative Appeals Tribunal Migration Decision / Federal Court Judgment on Originating Application
Outcome
Extension of time granted; Tribunal decision quashed for jurisdictional error; application remitted to the Administrative Appeals Tribunal for determination in accordance with law; first respondent ordered to pay the applicant's costs of the originating application directly to the pro bono lawyer.
Legal Topics
['extension of Time' 'mandatory Visa Cancellation' 'character Test' 'revocation of Visa Cancellation' 'direction 79' 'jurisdictional Error' 'administrative Appeals Tribunal']
['migration Law' 'administrative Law' 'judicial Review'] ['extension of Time' 'mandatory Visa Cancellation' 'character Test' 'revocation of Visa Cancellation' 'direction 79' 'jurisdictional Error' 'administrative Appeals Tribunal']

Case Brief

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Procedural Posture

Application for Extension of Time and Judicial Review of Administrative Appeals Tribunal Migration Decision / Federal Court Judgment on Originating Application

Legal Issues

  1. 1 ['Whether time should be extended for filing the judicial review application under s 477A(1) of the Migration Act 1958 (Cth).' "Whether the Administrative Appeals Tribunal failed to comply with Direction 79 when deciding whether there was another reason to revoke the mandatory cancellation of the applicant's visa." 'Whether the Tribunal failed to consider the qualification in para 6.3(5) of Direction 79 concerning higher tolerance for non-citizens who have lived in Australia for most of their life or from a very young age.' 'Whether the Tribunal failed to consider the likely effect of separation from the applicant on minor children as required by para 13.2(4)(d) of Direction 79.' "Whether the Tribunal failed to consider the strength, nature and duration of the applicant's ties to Australia as required by para 14.2 of Direction 79." "Whether the Tribunal failed to give real consideration to the applicant's submissions and to the extent of impediments he may face if removed from Australia."]

Ratio Decidendi

The Tribunal's decision was affected by jurisdictional error because it failed to comply with Direction 79 and failed to give real consideration to material and submissions before it. In particular, the Tribunal applied the low tolerance principle without considering the potentially applicable para 6.3(5) qualification for a non-citizen who had lived in Australia from a young age; failed to consider the likely effect of separation on minor children, including consequences flowing from the applicant's partner's mother's evidence; failed to consider the strength, nature and duration of the applicant's family and social ties in Australia; and recited but did not grapple with submissions...

Court Disposition

Extension of time granted; Tribunal decision quashed for jurisdictional error; application remitted to the Administrative Appeals Tribunal for determination in accordance with law; first respondent ordered to pay the applicant's costs of the originating application directly to the pro bono lawyer.

Orders

  • ["The decision of the Administrative Appeals Tribunal dated 9 April 2019 affirming a decision of the Minister's delegate not to revoke the cancellation of the applicant's Class WA Subclass 010 Bridging A visa be quashed." 'The application for review be remitted to the Administrative Appeals Tribunal for...