Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The case of Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerns an application by a Sri Lankan national seeking review of a decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal had affirmed a decision by a delegate of the Minister not to revoke the cancellation of the applicant’s visa under the Migration Act 1958 (Cth). The applicant, who had been convicted of numerous criminal offences, argued that the Tribunal failed to consider several matters in making its decision, including the impact on his minor children and the limitations on his ability to practice his religion. The applicant also argued that the Tribunal misconstrued the relevant legislative direction in two ways: by excluding consideration of the limitations on his ability to practice religion, and by interpreting the direction as only applying to impacts upon a major project or important service.

The court had to determine whether the Tribunal's decision was legally sound, specifically whether it had failed to consider the impact on the applicant's children, misconstrued the legislative direction by excluding the consideration of religious practice limitations, and whether it misinterpreted the scope of the direction. The court's analysis revealed that the Tribunal indeed failed to comply with Direction 90, which is part of the legislative framework guiding the Tribunal's decision-making process. The Tribunal did not properly consider the applicant's argument about the potential limitations on his ability to practice his religion if he were to return to Sri Lanka. This was a failure to adhere to the requirements of Direction 90, which explicitly mandates the consideration of impediments a non-citizen may face in maintaining basic living standards in their home country, including any social, medical, and economic support available. The court found that the Tribunal’s oversight constituted a jurisdictional error.

As a result, the court set aside the Tribunal's decision and remitted the matter back to the Tribunal for reconsideration. The court also ordered the Minister to pay the applicant's costs of the proceeding, reflecting the significance of the error made by the Tribunal. The court emphasized that the Tribunal must carefully consider all relevant factors as prescribed by Direction 90, including those related to religious practice, when determining whether to revoke a visa cancellation.