Kerry v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1355

Kerry v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1355

The Tribunal did not fail to consider the effect of non-revocation on the applicant's immediate family. Its reasons showed active engagement with the strength, nature and duration of the applicant's ties to Australia, the distress to his parents, sister, nieces and nephews, and the likely adverse health impacts on his mother. It was open to the Tribunal to find that the high risk of reoffending and risks to the Australian community outweighed those matters. The applicant's complaint was in substance an impermissible challenge to the weight given by the Tribunal, and no jurisdictional error was established.

Jurisdiction
Australia
Judgment Date
04 November 2021
Procedural Posture
Review of a Migration Decision Under S 476 a of the Migration Act 1958 (cth) / Amended Originating Application for Review of a Decision of the Administrative Appeals Tribunal Affirming a Delegate's Refusal to Revoke Mandatory Visa Cancellation
Outcome
The amended application for review was dismissed with costs.
Legal Topics
['visa Cancellation' 'character Test' 'revocation of Mandatory Visa Cancellation' 'direction No 79' 'jurisdictional Error' 'effect of Non Revocation on Immediate Family']
['migration' 'administrative Law'] ['visa Cancellation' 'character Test' 'revocation of Mandatory Visa Cancellation' 'direction No 79' 'jurisdictional Error' 'effect of Non Revocation on Immediate Family']

Case Brief

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Procedural Posture

Review of a Migration Decision Under S 476 a of the Migration Act 1958 (cth) / Amended Originating Application for Review of a Decision of the Administrative Appeals Tribunal Affirming a Delegate's Refusal to Revoke Mandatory Visa Cancellation

Legal Issues

  1. 1 ["Whether the Tribunal failed to comply with Direction No 79 by failing to consider the effect of non-revocation of the applicant's visa cancellation on his immediate family in Australia, particularly his mother's health." 'Whether any failure to consider that matter constituted jurisdictional error.']

Ratio Decidendi

The Tribunal did not fail to consider the effect of non-revocation on the applicant's immediate family. Its reasons showed active engagement with the strength, nature and duration of the applicant's ties to Australia, the distress to his parents, sister, nieces and nephews, and the likely adverse health impacts on his mother. It was open to the Tribunal to find that the high risk of reoffending and risks to the Australian community outweighed those matters. The applicant's complaint was in substance an impermissible challenge to the weight given by the Tribunal, and no jurisdictional error was established.

Court Disposition

The amended application for review was dismissed with costs.

Orders

  • ['The amended application for review of a migration decision filed 19 February 2021 be dismissed.' 'The applicant pay the costs of the first respondent, to be taxed if not otherwise agreed.']