RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111

RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111

The Tribunal committed jurisdictional error by failing to make a finding about the likelihood of the applicant engaging in further criminal or serious conduct and thus did not properly perform the evaluative task required by Direction 90; concluding that any risk was unacceptable was insufficient, as the degree of likelihood must be evaluated to determine the weight given to protection of the Australian community.

Jurisdiction
Australia
Judgment Date
18 September 2023
Procedural Posture
Judicial Review / Final Judgment
Outcome
Application allowed; decision quashed; matter remitted for reconsideration
Legal Topics
['visa Cancellation' 'judicial Review' 'jurisdictional Error' 'character Test' 'risk Assessment' 'direction 90']
['administrative Law' 'migration Law' 'constitutional Law' 'human Rights'] ['visa Cancellation' 'judicial Review' 'jurisdictional Error' 'character Test' 'risk Assessment' 'direction 90']

Case Brief

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Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 ["Whether the Tribunal failed to actively give proper, genuine and realistic consideration to psychologist Dr Philip Watts' expert evidence relating to the level of risk of the applicant re-offending" 'Whether the Tribunal acted irrationally, illogically or unreasonably in relation to the issue of the acceptable risk level of the Applicant re-offending' 'Whether the Tribunal complied with the requirements of Direction 90 in assessing risk']

Ratio Decidendi

The Tribunal committed jurisdictional error by failing to make a finding about the likelihood of the applicant engaging in further criminal or serious conduct and thus did not properly perform the evaluative task required by Direction 90; concluding that any risk was unacceptable was insufficient, as the degree of likelihood must be evaluated to determine the weight given to protection of the Australian community.

Court Disposition

Application allowed; decision quashed; matter remitted for reconsideration

Orders

  • ['A writ of certiorari be issued quashing the decision of the second respondent of 26 August 2022' 'The application for review be remitted to the second respondent for reconsideration and determination according to law' 'The costs of the application are reserved' 'Timetabling for submissions on costs']