Gent v Minister for Immigration, Citizenship and Multicultural Affairs - [2025] FCA 204

FEDERAL COURT OF AUSTRALIA
Gent v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 204

Review of: Decision of the Administrative Appeals Tribunal delivered by Senior Member A Poljak on 12 February 2024

File number(s): NSD 369 of 2024

Judgment of: JACKMAN J

Date of judgment: 13 March 2025

Catchwords: MIGRATION – application for extension of time for review of migration decision under r 31.23 of the Federal Court Rules 2011 (Cth) – extension of time granted – application for review of migration decision – where alleged the Administrative Appeals Tribunal (Tribunal) erred in noting there was no evidence that the applicant would not receive treatment in New Zealand – where alleged the Tribunal erred in finding that the applicant had not rehabilitated, given subsequent offence was less serious – application for review of migration decision dismissed

Legislation:
Migration Act 1958 (Cth)

Federal Court Rules 2011 (Cth)

Cases cited:
BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 89; (2022) 291 FCR 568

XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 19

Date of hearing: 13 March 2025

Counsel for the Applicant: Mr P Berg

Solicitor for the Applicant: SouthWest Migration & Legal Services

Counsel for the First Respondent: Mr T Reilly

Solicitor for the First Respondent: Mills Oakley

ORDERS

NSD 369 of 2024

BETWEEN:
JOHN KARENA GENT

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JACKMAN J

DATE OF ORDER:

13 MARCH 2025

THE COURT ORDERS THAT:
1.The time for the applicant to lodge an application for review of a migration decision be extended to 19 March 2024.
2.Leave be granted to the applicant to file in court the originating application for review of a migration decision in the form of exhibit MM2 to the affidavit of Marta Mamarot dated 19 March 2024.
3.The application for review of a migration decision be dismissed.
4.The applicant pay the Minister’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
Delivered ex tempore, revised from transcript
JACKMAN J:

Before me is an application for an extension of time pursuant to s 477A(2) of the Migration Act 1958 (Cth) (the Act) and r 31.23 of the Federal Court Rules 2011 (Cth) to make an application seeking review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 12 February 2024. The tribunal affirmed a decision of a delegate of the first respondent (Minister) to cancel the applicant’s subclass 444 special category visa pursuant to s 501(2)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gent v Minister for Immigration, Citizenship and Multicultur...

Details

AGLC: Gent v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 204
Case: [2025] FCA 204
Decision Date: 13 March 2025

CaseChat Overview and Summary

The case of Gent v Minister for Immigration, Citizenship and Multicultural Affairs involved the applicant, seeking an extension of time to lodge an application for review of a migration decision. The applicant's appeal was heard in the Federal Court of Australia. The decision under review was made by the Administrative Appeals Tribunal, which had previously declined to grant the applicant a visa. The applicant contended that the Tribunal had erred in its decision-making process, particularly regarding the availability of treatment in New Zealand and the assessment of the applicant's rehabilitation.

The legal issues before the court were whether the applicant's application for an extension of time was justified under rule 31.23 of the Federal Court Rules 2011 and whether the Tribunal's decision to refuse the visa was legally sound. Specifically, the applicant argued that the Tribunal had failed to consider relevant evidence regarding the availability of treatment in New Zealand and had incorrectly assessed the seriousness of the subsequent offence in determining the applicant's rehabilitation. The court had to determine if these errors were significant enough to warrant a review of the Tribunal’s decision.

In granting the extension of time, the court found that the applicant had demonstrated sufficient grounds for the delay in lodging the application for review, primarily due to the complexity of the issues and the need for comprehensive legal representation. However, the court ultimately dismissed the application for review of the migration decision. The court held that the Tribunal's decision was not legally flawed. The court concluded that the Tribunal had correctly considered the evidence and that the applicant had not demonstrated a sufficient basis to overturn the Tribunal's findings. As such, the court ordered the dismissal of the applicant's review application and mandated the payment of the Minister’s costs by the applicant.

Orders

Orders of the court

1. The time for the applicant to lodge an application for review of a migration decision be extended to 19 March 2024.

2. Leave be granted to the applicant to file in court the originating application for review of a migration decision in the form of exhibit MM2 to the affidavit of Marta Mamarot dated 19 March 2024.

3. The application for review of a migration decision be dismissed.

4. The applicant pay the Minister’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Review of:	Decision of the Administrative Appeals Tribunal delivered by Senior Member A Poljak on 12 February 2024
File number(s):	NSD 369 of 2024
Judgment of:	JACKMAN J
Date of judgment:	13 March 2025
Catchwords:	MIGRATION – application for extension of time for review of migration decision under r 31.23 of the Federal Court Rules 2011 (Cth) – extension of time granted – application for review of migration decision – where alleged the Administrative Appeals Tribunal (Tribunal) erred in noting there was no evidence that the applicant would not receive treatment in New Zealand – where alleged the Tribunal erred in finding that the applicant had not rehabilitated, given subsequent offence was less serious – application for review of migration decision dismissed
Legislation:	Migration Act 1958 (Cth) Federal Court Rules 2011 (Cth)
Cases cited:	BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 89; (2022) 291 FCR 568 XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	19
Date of hearing:	13 March 2025
Counsel for the Applicant:	Mr P Berg
Solicitor for the Applicant:	SouthWest Migration & Legal Services
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Mills Oakley

ORDER MADE BY:	JACKMAN J
DATE OF ORDER:	13 MARCH 2025