Shi v Minister for Immigration and Citizenship [2012] FCA 533

Shi v Minister for Immigration and Citizenship [2012] FCA 533

The Tribunal complied with Direction 41. It considered the seriousness and nature of Mr Shi's conduct and the risk of repetition, found a real risk that he would commit further serious offences, and weighed that against other considerations; on a fair reading it had taken into account the objective of protection from unacceptable risk. The Tribunal also considered the required primary consideration of the length of residence before criminal activity by finding that Mr Shi had been in Australia for just over three years before committing a serious violent offence. Direction 41 did not require separate consideration of likely community ties under cl 10.3, and family ties were considered...

Jurisdiction
Australia
Judgment Date
28 May 2012
Procedural Posture
Application for Review of a Decision of the Administrative Appeals Tribunal Affirming Cancellation of a Class BL Visa Under S 501(2) of the Migration Act 1958 (cth) / Federal Court Application; Applicant Sought Leave to File an Amended Originating Application Adding a Third Ground
Outcome
Leave to file and rely on the proposed amended originating application refused; application dismissed with costs.
Legal Topics
['visa Cancellation Under S 501(2)' 'direction No 41 Under S 499' 'character Test' 'unacceptable Risk of Harm to the Australian Community' 'relevant and Irrelevant Considerations' 'jurisdictional Error' 'leave to Amend Originating Application']
['migration Law' 'administrative Law'] ['visa Cancellation Under S 501(2)' 'direction No 41 Under S 499' 'character Test' 'unacceptable Risk of Harm to the Australian Community' 'relevant and Irrelevant Considerations' 'jurisdictional Error' 'leave to Amend Originating Application']

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Procedural Posture

Application for Review of a Decision of the Administrative Appeals Tribunal Affirming Cancellation of a Class BL Visa Under S 501(2) of the Migration Act 1958 (cth) / Federal Court Application; Applicant Sought Leave to File an Amended Originating Application Adding a Third Ground

Legal Issues

  1. 1 ['Whether the Tribunal fell into jurisdictional error by failing to assess whether Mr Shi posed an unacceptable risk of harm to the Australian community.' 'Whether, in considering the length of time Mr Shi had been ordinarily resident in Australia before engaging in criminal activity, the Tribunal failed to take into account relevant considerations or took into account irrelevant considerations.' "Whether leave should be granted to add a ground alleging that the Tribunal failed to take into account Mr Shi's level of education and efforts to improve his education."]

Ratio Decidendi

The Tribunal complied with Direction 41. It considered the seriousness and nature of Mr Shi's conduct and the risk of repetition, found a real risk that he would commit further serious offences, and weighed that against other considerations; on a fair reading it had taken into account the objective of protection from unacceptable risk. The Tribunal also considered the required primary consideration of the length of residence before criminal activity by finding that Mr Shi had been in Australia for just over three years before committing a serious violent offence. Direction 41 did not require separate consideration of likely community ties under cl 10.3, and family ties were considered...

Court Disposition

Leave to file and rely on the proposed amended originating application refused; application dismissed with costs.

Orders

  • ['Leave to file and rely on the proposed amended originating application be refused.' 'The application be dismissed.' "The applicant pay the respondent's costs."]