Tham v Minister for Immigration and Citizenship [2012] FCA 234

Tham v Minister for Immigration and Citizenship [2012] FCA 234

The Tribunal was entitled to take into account both the fact of the Canadian conviction and the applicant’s submissions of innocence, and was not obliged to make a finding of actual guilt or innocence where there was no sufficient basis; it appropriately considered the conduct and circumstances in assessing the risk of reoffending, and did not commit jurisdictional error by not expressly determining innocence.

Parties
Applicant: Tho Duc Tham; First Respondent: Minister for Immigration and Citizenship; Second Respondent: Administrative Appeals Tribunal
Jurisdiction
Australia
Judgment Date
20 March 2012
Procedural Posture
Judicial Review Application / Appeal From Administrative Appeals Tribunal
Outcome
Application dismissed with costs
Legal Topics
Visa Cancellation, Character Test Under Migration Act, Jurisdictional Error, Administrative Decision Making
Administrative Law Migration Law Visa Cancellation Character Test Under Migration Act Jurisdictional Error Administrative Decision Making

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Parties

Tho Duc Tham

Applicant

Minister for Immigration and Citizenship

First Respondent

Administrative Appeals Tribunal

Second Respondent

Procedural Posture

Judicial Review Application / Appeal From Administrative Appeals Tribunal

Legal Issues

  1. 1 Whether the Administrative Appeals Tribunal was required to make a finding on the applicant's asserted innocence regarding a prior Canadian criminal conviction in assessing the discretion to cancel a visa under s 501 of the Migration Act 1958 (Cth)
  2. 2 Whether the Tribunal failed to take into account an integer of the applicant's case, amounting to jurisdictional error

Ratio Decidendi

The Tribunal was entitled to take into account both the fact of the Canadian conviction and the applicant’s submissions of innocence, and was not obliged to make a finding of actual guilt or innocence where there was no sufficient basis; it appropriately considered the conduct and circumstances in assessing the risk of reoffending, and did not commit jurisdictional error by not expressly determining innocence.

Court Disposition

Application dismissed with costs

Orders

  • The application be dismissed.
  • The applicant pay the first respondent's costs.