AXT17 v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

AXT17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3084
Catchwords:
MIGRATION – Cancellation of Protection visa – misconstruction of regulation 2.41(k) of Migration Regulations 1994 (Cth) – whether Tribunal misconstrued reg 2.41(k) having regard to the findings made upon material advanced by applicant respecting his contribution to the community – Tribunal entitled to form view that matters relied upon were not truly relevant considerations and to give them no weight – no misconstruction of regulation – irrelevant considerations – whether Tribunal took into account circumstance that applicant’s wife may have been pregnant to the applicant at time she was noted as a member of the same family unit when her former husband made application for a Protection visa – matter not taken into account – whether Tribunal failed to notify applicant of matters that would have been the reason or part of the reason to affirm the decision to cancel the visa – applicable principles – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss 36, 65, 101, 109, 424A, 424AA, 474, 476

Migration Regulations 1994 (Cth), reg 2.41

Cases cited:

A v Corruption and Crime Commissioner (2013) 306 ALR 491

BZW16 v Minister for Immigration and Border Protection [2019] FCA 395

Craig v South Australia (1995) 184 CLR 163

Hamersley Iron Pty Ltd v James [2015] WASC 10

He v Minister for Immigration and Border Protection (2017) 255 FCR 41

Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1

Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86

Malek Fahd Islamic School Limited v Minister for Education and Training

(No 2) [2017] FCA 1377

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 4

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

Minister for Immigration and Multicultural Affairs v Yusuf (2003) 206 CLR 323

Nguyen v Minister for Home Affairs [2019] FCA 892

Nguyen v Minister for Immigration and Border Protection [2018] FCA 1374

Nguyen v Minister for Immigration and Border Protection [2019] FCA 159

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018)

92 ALJR 481

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 124 ALR 265

Robinson v Fielding [2015] WASC 108

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs(2005) 228 CLR 294

Sun v Minister for Immigration and Border Protection [2017] FCA 1270

SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190

Williams v IS Industry Fund Pty Ltd [2018] FCAFC 219

Applicant: AXT17
First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: MLG 443 of 2017
Judgment of: Judge A Kelly
Hearing date: 18 October 2019
Date of Last Submission: 18 October 2019
Delivered at: Melbourne
Delivered on: 30 October 2019
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Details
Case
[2019] FCCA 3084
Decision Date

CaseChat Overview and Summary

The applicant, AXT17, sought judicial review of a decision by the Minister for Immigration to cancel his protection visa. The Administrative Appeals Tribunal (AAT) had affirmed the Minister's decision. The case came before Judge A Kelly of the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the Tribunal had misconstrued regulation 2.41(k) of the *Migration Regulations 1994* (Cth) by failing to give sufficient weight to the applicant's contributions to the community, and whether the Tribunal had taken into account irrelevant considerations, specifically the potential pregnancy of the applicant's wife at the time her former husband applied for a protection visa. Additionally, the Court considered whether the Tribunal had failed to notify the applicant of the reasons for affirming the cancellation decision.

The Court found that the Tribunal was entitled to form the view that the matters relied upon by the applicant regarding his community contributions were not truly relevant considerations for the purpose of regulation 2.41(k) and therefore could give them no weight. The Court determined that there was no misconstruction of the regulation. Furthermore, the Court found that the circumstance of the applicant's wife's potential pregnancy at the time of her former husband's application was not taken into account by the Tribunal. The Court also concluded that the Tribunal had complied with its obligations to notify the applicant of the reasons for its decision.

The application for judicial review was dismissed.

Orders

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Evidence

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Decision

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Ratio Decidendi

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