FCFY v Minister for Home Affairs

The applicant in FCFY v Minister for Home Affairs sought an extension of time to file an originating application for judicial review of a decision by the Tribunal. The Tribunal had refused to revoke the cancellation of the applicant’s visa. The primary legal issue for the court was whether the Tribunal had misunderstood its task when it exercised its discretion in carrying out the balancing exercise. The court had to determine whether the Tribunal had correctly applied the relevant provisions of Direction 65 when it balanced the applicant’s ties to Australia against the seriousness of his criminal conduct and the risk he posed to the Australian community.

The court examined the Tribunal’s reasons and found that there was an error in the Tribunal’s application of Direction 65. The court noted that the Tribunal had referred to the principle that primary considerations should generally be given greater weight than other considerations, but had failed to consider that the particular facts of the case might be such that the primary considerations should not be given greater weight. The court concluded that the Tribunal had misapplied Direction 65 when it carried out the balancing exercise, as it had excluded the possibility that the applicant’s ties to Australia could outweigh the primary considerations which weighed against revocation.

The court granted the applicant an extension of time to file an originating application for judicial review. The court found that the applicant’s application had some prospects of success and that it was in the interests of justice to grant the extension. The court ordered that the draft originating application filed on 22 May 2019 be taken to be an originating application filed by the applicant, and that a referral certificate for legal assistance be issued in respect of the applicant. The applicant was ordered to file an amended originating application for review of the migration decision within 8 weeks.