HSKJ v Minister for Immigration and Border Protection

HSKJ, the applicant, has sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to dismiss his application for review of the Minister's decision to cancel his visa under section 501CA of the Migration Act 1958 (Cth). The AAT upheld the delegate's decision to cancel the applicant's visa on character grounds, finding that there were no other considerations that warranted revocation of the cancellation. The central issue before the court was whether the Tribunal erred in treating certain considerations as secondary, which is not consistent with the direction issued by the Minister. This issue was recently considered by Colvin J in Suleiman v Minister for Immigration and Border Protection, where it was held that the Tribunal had erred in its approach.

The court examined the relevant provisions of Direction 65, which outline the considerations for decision-makers when assessing visa cancellations. It noted that Direction 65 does not explicitly categorise any considerations as secondary but rather requires an evaluation of the appropriate weight to be given to both primary and other considerations. The court found that the Tribunal had misapplied the direction by treating some considerations as inherently secondary, thereby committing a jurisdictional error. The court held that the Tribunal's approach was inconsistent with the direction's requirement for an individualised assessment of the weight of each consideration. It emphasised that the Tribunal should not have presumed that other considerations are always of lesser importance.

In light of this error, the court set aside the AAT's decision and remitted the matter back to the Tribunal for reconsideration in accordance with the law. The court also ordered the Minister to pay the applicant's costs of the application, to be assessed if not agreed. The court's decision underscores the importance of adhering to the specific guidance provided in ministerial directions when making decisions affecting an individual's visa status.