QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 166

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 166

Leave was granted to rely on proposed ground 1 because it could be resolved by reference to the Tribunal's reasoning and the material in the Court Book, but leave was refused for proposed ground 2 because the no-evidence complaints could not be established without all evidence before the Tribunal, including the hearing transcript. Ground 1 failed because the Tribunal's challenged findings were reasonably open, did not meet the high threshold of extreme illogicality or irrationality, and in any event were not material to the outcome; the Tribunal had ultimately treated impediments to removal as weighing substantially in favour of revocation. Viane was distinguishable because the impugned...

Jurisdiction
Australia
Judgment Date
15 September 2021
Procedural Posture
Appeal From Dismissal of Application for Judicial Review of Administrative Appeals Tribunal Decision Affirming Non Revocation of Mandatory Visa Cancellation Under S 501 Ca(4) of the Migration Act 1958 (cth) / Full Court Appeal; Application for Leave to Rely on Proposed Amended Notice of Appeal and Recusal Application
Outcome
Appeal dismissed; leave granted for ground 1 of the proposed amended notice of appeal; leave refused for ground 2; recusal application rejected.
Legal Topics
['visa Cancellation' 'revocation of Mandatory Cancellation' 'character Test' 'jurisdictional Error' 'illogicality or Irrationality' 'legal Unreasonableness' 'no Evidence Ground' 'materiality' 'apprehended Bias' 'recusal']
['migration Law' 'administrative Law' 'judicial Review'] ['visa Cancellation' 'revocation of Mandatory Cancellation' 'character Test' 'jurisdictional Error' 'illogicality or Irrationality' 'legal Unreasonableness' 'no Evidence Ground' 'materiality' 'apprehended Bias' 'recusal']

Case Brief

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Procedural Posture

Appeal From Dismissal of Application for Judicial Review of Administrative Appeals Tribunal Decision Affirming Non Revocation of Mandatory Visa Cancellation Under S 501 Ca(4) of the Migration Act 1958 (cth) / Full Court Appeal; Application for Leave to Rely on Proposed Amended Notice of Appeal and Recusal Application

Legal Issues

  1. 1 ['Whether the appellant should have leave to rely on proposed amended appeal grounds not run before the primary judge.' "Whether the Tribunal's fact finding was illogical, irrational or legally unreasonable in relation to credibility findings, family reunification, work prospects, English language skills, qualifications, and ability to live in a third country." 'Whether leave should be granted to advance a no evidence ground where the appellant had not adduced all evidence before the Tribunal, including the Tribunal hearing transcript.' "Whether any alleged errors were material to the Tribunal's decision not to revoke the visa cancellation." "Whether Bromwich J should recuse himself for apprehended bias because he had appeared for the prosecution in the appellant's earlier conviction appeal as Commonwealth Director of Public Prosecutions."]

Ratio Decidendi

Leave was granted to rely on proposed ground 1 because it could be resolved by reference to the Tribunal's reasoning and the material in the Court Book, but leave was refused for proposed ground 2 because the no-evidence complaints could not be established without all evidence before the Tribunal, including the hearing transcript. Ground 1 failed because the Tribunal's challenged findings were reasonably open, did not meet the high threshold of extreme illogicality or irrationality, and in any event were not material to the outcome; the Tribunal had ultimately treated impediments to removal as weighing substantially in favour of revocation. Viane was distinguishable because the impugned...

Court Disposition

Appeal dismissed; leave granted for ground 1 of the proposed amended notice of appeal; leave refused for ground 2; recusal application rejected.

Orders

  • ['The appellant have leave to rely upon ground 1 of the proposed amended notice of appeal.' 'Leave is not granted for the appellant to rely upon ground 2 of the proposed amended notice of appeal.' 'The appeal be dismissed.' "The appellant pay the first respondent's costs, as agreed or taxed."]