Mujedenovski v Minister for Immigration and Citizenship [2009] FCAFC 149

Mujedenovski v Minister for Immigration and Citizenship [2009] FCAFC 149

The Tribunal erred in applying s 501(6)(c) because its reasons showed that it treated Mr Selimi's past criminal and general conduct as sufficient to demonstrate a present lack of good character, appeared to require affirmative evidence of present good character or rehabilitation, and failed to give due weight to the absence of present criminal conduct or identified adverse present general conduct. The adverse findings made later in the Tribunal's reasons when considering discretion could not cure that error because the Tribunal had already reached its conclusion on the character test.

Jurisdiction
Australia
Judgment Date
23 October 2009
Procedural Posture
Appeal From a Single Judge of the Federal Court Dismissing an Application for Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Contributory Parent/migrant Visa / Full Court Appeal
Outcome
Appeal allowed; matter remitted to the Administrative Appeals Tribunal for reconsideration according to law; first respondent ordered to pay the appellant's costs of the appeal and of the application at first instance.
Legal Topics
['character Test Under S 501 of the Migration Act 1958 (cth)' 'good Character' 'past and Present Criminal Conduct' 'past and Present General Conduct' 'visa Refusal' 'administrative Appeals Tribunal Error of Law']
['migration Law' 'administrative Law' 'judicial Review'] ['character Test Under S 501 of the Migration Act 1958 (cth)' 'good Character' 'past and Present Criminal Conduct' 'past and Present General Conduct' 'visa Refusal' 'administrative Appeals Tribunal Error of Law']

Case Brief

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Procedural Posture

Appeal From a Single Judge of the Federal Court Dismissing an Application for Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Contributory Parent/migrant Visa / Full Court Appeal

Legal Issues

  1. 1 ['Whether the Tribunal properly construed and applied s 501(6) of the Migration Act 1958 (Cth) in deciding that Mr Selimi did not pass the character test.' 'Whether the Tribunal impermissibly treated past criminal and general conduct as sufficient without giving due weight to the absence of present criminal conduct or adverse present general conduct.' 'Whether the Tribunal reversed the relevant inquiry by requiring an affirmative demonstration of present good character or rehabilitation.']

Ratio Decidendi

The Tribunal erred in applying s 501(6)(c) because its reasons showed that it treated Mr Selimi's past criminal and general conduct as sufficient to demonstrate a present lack of good character, appeared to require affirmative evidence of present good character or rehabilitation, and failed to give due weight to the absence of present criminal conduct or identified adverse present general conduct. The adverse findings made later in the Tribunal's reasons when considering discretion could not cure that error because the Tribunal had already reached its conclusion on the character test.

Court Disposition

Appeal allowed; matter remitted to the Administrative Appeals Tribunal for reconsideration according to law; first respondent ordered to pay the appellant's costs of the appeal and of the application at first instance.

Orders

  • ['The appeal is allowed.' 'The matter be remitted to the Administrative Appeals Tribunal for reconsideration according to law.' 'The first respondent pay to the appellant her costs of the appeal and of the application at first instance.']