Hussein v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1060
•10 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hussein v Minister for Immigration and Citizenship [2025] FedCFamC2G 1060
File number(s): SYG 53 of 2022 Judgment of: JUDGE D HUMPHREYS Date of judgment: 10 July 2025 Catchwords: MIGRATION – Partner (Provisional) (Class UF) (Subclass 309) visa – Administrative Appeals Tribunal –one ground of judicial review – whether the Tribunal made a jurisdictional error by cancelling the applicant’s visa - sole ground of judicial review has no merit – Application dismissed. Legislation: Migration Act 1958 (Cth) ss 65, 116, 375A.
Migration Regulations 1994 (Cth) reg 2.43
Cases cited: AHZ21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 884
AJS19 v Minister for Immigration and Border Protection [2019] FCCA 219
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Machmud v Minister for Immigration and Multicultural Affairs [2001] FCA 1041
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of hearing: 3 July 2025 Place: Parramatta Counsel for the Applicant: Mr Jones Solicitor for the Applicant: Mr Khan, Juris Australia Counsel for the First Respondent: Mr Johnson Solicitor for the First Respondent: Mr Pattinson, Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 53 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHAHID HUSSEIN
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
10 JULY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Citizenship’.
2.The Application is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,700.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (as it was then) (Tribunal), dated 16 December 2021 affirming a decision of a delegate of the First Respondent (delegate) cancelling the applicant’s Partner (Provisional) (Class UF) (Subclass 309) visa (visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
For the reasons set out below, the application must be dismissed.
BACKGROUND
The applicant is a citizen of Fiji. The applicant was granted a partner visa on 18 January 2019 on the basis of his relationship with his spouse, Ms Mohammed.
On 14 September 2020, the applicant was convicted in Mt Druitt Local Court of Assault occasioning actual bodily harm (DV) and was sentenced to a Community Correction Order (CCO) of 15 months and 15 months of treatment programs (the 2020 conviction).
On 10 August 2021, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC). The NOICC identified that grounds for cancellation exist. The applicant was invited to comment on the 2020 conviction to show why the grounds for cancellation did not exist, or why the visa should not be cancelled.
On 19 August 2021, the applicant emailed the Department of Home Affairs apologising for the offence, stating his remorsefulness, claiming that he loved his wife and child, it would be difficult to live without them, and since his son was born prematurely, this placed him in a situation where he was stressed.
On 29 September 2022, the delegate decided to cancel the applicant’s Partner visa as the delegate was satisfied there was a ground for cancellation under s 116(g) of the Act and reg 2.43(1)(oa) of the Migration Regulations 1994 (Cth) (the Regulations).
On 29 September 2021, the applicant applied to the Tribunal for review and appointed Mr Khan as his representative.
The applicant was invited to attend a hearing on 14 December 2021.
On 18 November 2021, the Tribunal informed the applicant that the Department of Home Affairs had issued a certificate under s 375A of the Act on the basis that disclosure of certain material would be against public interest. The letter to the applicant invited him to comment on the validity of the certificate.
On 13 December 2021, the applicant provided a written submission to the Tribunal, conceding that a ground for cancellation existed but submitted that the Tribunal should exercise its discretion not to cancel the visa.
On 16 December 2021, the Tribunal affirmed the decision under review.
THE TRIBUNAL’S DECISION
The Tribunal noted the relevant law as it relates to the application under review. Under s 116 of the Act, the Minister may cancel a visa if they are satisfied that certain grounds in that provision are made out, for the purposes of the applicant’s case, s 116(g) was included.
The prescribed cancellation grounds are set out in reg 2.43, and more relevantly, reg 2.43 (oa), which is set out below:
Grounds for cancellation of visa (Act, s116)
(1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:
(OA)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))
If the decision-maker is satisfied that the ground for cancellation is made out, they must consider whether the visa should be cancelled, having regard to all the relevant materials.
In determining whether the ground for cancellation exists, the Tribunal considered the advice from the Department of Home Affairs indicating that the applicant was convicted of Assault Occasioning Bodily Harm ( DV) and was sentenced to a 15-month CCO. The applicant confirmed in his submission to the Tribunal that he was also issued with an Apprehended Violence Order (AVO), due to expire in September 2022. The applicant conceded that there were grounds for cancelling the visa.
The Tribunal found that the applicant was the holder of a temporary visa. He had been convicted of offences against the law of a state. On this basis, under s 116(1)(g) and reg 2.43(1)(oa), there existed grounds for cancellation.
Section 116(1)(g) does not require mandatory cancellation under s 116(3), therefore, the Tribunal was then required to consider whether or not the visa should be cancelled.
The Tribunal had regard to the circumstances of the case, matters raised by the applicant and consideration in the Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. The applicant also provided ‘lengthy’ submissions on 13 December 2021, being the afternoon before the scheduled hearing on 14 December 2021. The Tribunal considered this late submission “less than helpful”.
The Tribunal considered the purpose of the visa holder's travel and stay in Australia, and whether the visa holder had a compelling need to travel to or remain in Australia.
The Tribunal found that the purpose of a Partner visa was to enable the applicant to stay in Australia with his partner. The Tribunal acknowledged that the applicant had presented very little documentary evidence of his ongoing relationship with his partner. Although the conditions of the AVO restricted the applicant and his wife, Ms Mohammed from living together, it found that there was little evidence to support that they undertake joint social activities, represent themselves to others as being in a spousal relationship and that they rely on each other for comfort or view their relationship as a long term one. On the evidence before it, the Tribunal was not prepared to conclude that there was a mutual commitment to a shared life as husband and wife by the applicant and Ms Mohammed.
The Tribunal found the wife’s reluctance to vary the terms of the AVO to demonstrate that their relationship may not be a mutually committed one [13].
The Tribunal accepted that the applicant is fulfilling the purpose of the visa due to the care he provides to the child. The Tribunal also accepted the presence of the child in Australia as well as the pregnancy and imminent birth of a second child to constitute a compelling need for him to remain in Australia [14].
At [15], the Tribunal found that there was no evidence of non-compliance with visa conditions.
The Tribunal considered the degree of hardship that may be caused as to financial, psychological, emotional or other hardship and made the following findings.
The Tribunal accepted that hardship would be caused to the applicant, due to the separation from his family and child [16]. The Tribunal did not accept his self-diagnosis of future depression in that instance.
The Tribunal accepted that the applicant provides financial support for his family and the cancellation of the visa may result in his income being reduced, however, it did not accept that this would result in financial hardship [17].
In relation to evidence advanced about the applicant’s wife’s health, at [18] the Tribunal did not consider Ms Mohammed’s heart condition to be of such a nature that it required the applicant’s presence in Australia. The Tribunal did not consider that hardship would ensue if the applicant’s visa was cancelled because of Ms Mohammed’s heart condition. The Tribunal also did not consider that Ms Mohammad was suffering from post-natal depression at present and the applicant’s claims that she might in the future were speculative [19].
The applicant stated that if he were required to leave Australia as a result of the visa cancellation, this would adversely affect his wife and child, causing considerable hardship. In the circumstances where the applicant had previously been convicted of an offence against his partner and where an AVO was still in effect, the Tribunal did not accept that hardship to Ms Mohammed and their child would be automatically established.
In a similar vein, although the applicant submitted oral evidence that he may be able to find work in Fiji, the working conditions are not good, there is corruption and no justice, the Tribunal accepted these claims, and that the conditions and income may differ from Australia. However, it remained satisfied the applicant would be able to find gainful employment and support himself by working in Fiji, as he had done prior to arriving in Australia [21].
The applicant stated that the health system in Fiji was not good. The applicant did not present evidence to support this claim and failed to satisfy the Tribunal that he would not receive adequate health care should the need arise. The Tribunal considered that this claim was purely hypothetical but found that even if he did require access, there was no evidence to satisfy the Tribunal that he would not receive appropriate healthcare [22].
At [23], the Tribunal was prepared to accept the emotional hardship that may be caused by the applicant not seeing his son every day.
At [24]-[26], the Tribunal considered the circumstances in which the ground of cancellation arose. Taking into account all the relevant information, the Tribunal acknowledged that any offence involving violence against another person and domestic violence is of a serious nature.
The Tribunal assessed whether there were mandatory legal consequences that flowed from the cancellation of the visa and considered each in turn at [29].
The Tribunal assessed whether any international obligations would be breached as a result of the cancellation.
At [30], the Tribunal noted that the applicant referred to the poor security and levels of crime in Fiji, stating that he may be assaulted at any time. The applicant recounted two instances of being robbed before he came to Australia, which he alleged applies to everyone, not only him. Although the applicant states that the matter was reported to police in Fiji, these police were not effective and could not do much [30]. The Tribunal found that the applicant did not claim that he was targeted for any of his characteristics, and thus his claims did not give rise to protection obligations.
The Tribunal found that the applicant was eligible to seek a protection visa in Australia and his claims would be assessed as part of that application ([31]). The Tribunal found Australia’s non-refoulement obligations would not be breached as a result of the cancellation [32].
At [33], the Tribunal considered the applicant’s family circumstances, noting that the principles of family unity may require his presence in Australia.
The Tribunal considered the applicant’s claims, including that there was no evidence he had committed any violent act against the child, that the incident was a once-off due to stresses at the time, and that he had changed and completed programs. The Tribunal considered that it was not in the best interests of the child to live in circumstances where there is violence perpetrated by one parent against another. Further, the applicant’s resolve had not been tested in the current home environment. The Tribunal formed the view that there remains a risk, albeit not a significant risk, of the applicant engaging in the same conduct [34].
At [35], the Tribunal found that the best interests of the child(ren) would not be adversely affected by the cancellation, acknowledging that it may lead to separation of the applicant from his children.
It was accepted as another relevant matter, a letter of support from the applicant’s employer as evidence of his employment and contribution to the employer, but overall, it was not considered helpful as a character reference [36].
The Tribunal did not accept evidence that it would be hard for the applicant to return to Fiji, given that he had lived there his entire life and only three years in Australia. The Tribunal found that the applicant would be able to re-establish himself in Fiji [37].
The Tribunal formed the view that the best interests of the children would not be adversely affected by the cancellation and that Australia's international obligations would not be breached [39].
The Tribunal gave greater weight to the circumstances in which the grounds for cancellation arose, ultimately concluding at [40]:
The applicant was convicted of a serious offence involving violence towards his partner. The Tribunal has formed the view that the applicant's involvement in rehabilitation programs was minimal, and while acknowledging the applicant's expression of remorse and assertion that he has changed, the Tribunal has formed the view that the circumstances have not allowed for the applicant's resolve to be tested. The Tribunal has some reservations about the applicant's claim that his spousal relationship with Ms Mohammed is ongoing, given the very limited evidence of the different aspects of the relationship that has been presented to the Tribunal, and the Tribunal acknowledges the parties' evidence that the applicant may seek another partner visa in the future, if that relationship does exist and should the applicant's partner be willing to be with the applicant.
On this basis, the Tribunal decided to cancel the applicant’s visa.
GROUNDS OF JUDICIAL REVIEW
The applicant sought leave of the Court to rely on an Amended Application filed on 5 June 2025. The one ground of review advanced is as follows ( less particulars):
1.The Tribunal made a jurisdictional error in considering whether to exercise its discretion to cancel the Applicant’s visa under s 116(1) of the Migration Act 1958 (Cth).
THE APPLICANT’S SUBMISSIONS
The sole ground relied upon is an allegation that the Tribunal committed jurisdictional error in its consideration of whether to exercise its discretion under s 116(1) of the Act. In the particulars, the applicant specifically references the Tribunal’s decision at [30], [31], [32] and [39] to raise that the Tribunal did not adequately consider the applicant’s claim of harm, irrespective of whether he was owed international protection obligations.
Reference is made to the case of Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (M1) at [29]-[30] in which the High Court endorsed the Tribunal’s approach of finding the protection obligations were not engaged and deferred to the available protection visa application process should the applicant pursue that avenue.
The applicant argues that there is a further aspect, recognised in M1, which the Tribunal failed to apply. The Tribunal was required to consider the allegations of fact immediately without deferring and awaiting the protection visa phase:
[39] Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being "another reason" why the Cancellation Decision should be revoked.
The applicant submits that the general principles of M1 apply in this case. The decision maker may defer consideration of international non-refoulement obligations to the protection visa stage, however, it should also consider the underlying allegation of facts underlying the claims of harm immediately.
The Tribunal in this case did not immediately consider the underlying allegations of fact as a matter weighing against the cancellation of the visa. The Tribunal deferred this consideration to the protection visa phase, or alternatively, considered the harm as it related to international protection obligations.
The applicant adds that it does not take away from his case that his claim of harm does not appear to be corroborated. The Tribunal would still have had to consider: AHZ21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 884 at [56]; see also Machmud v Minister for Immigration and Multicultural Affairs [2001] FCA 1041 at [16].
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent reiterates that the Tribunal had regard to the circumstances of the case, including matters raised by the applicant and matters in the PAM3. This was in circumstances where there were no matters in the Act or Regulations that had to be considered in the Tribunal’s exercise of its discretion to cancel the applicant’s visa.
The Tribunal considered the claims of the applicant as they had been squarely put by him. The applicant advanced his claim of fear of harm from generalised violence in Fiji for the first time at the Tribunal hearing. The applicant’s claims to fear harm were raised in the context of Australia’s international obligations, and there is no evidence to suggest the applicant’s claim to fear harm went beyond that context.
In any case, the Court should not infer that such additional claims were made. If the Court were to draw this inference that the claims to fear harm were made beyond the context of international obligations, the Tribunal found that the matters raised by the applicant had a general application and the authorities would not withhold protection. It is submitted that this was sufficiently dispositive to deal with the matters raised.
The first respondent distinguishes the current applicant’s case from the example of AJS19 v Minister for Immigration and Border Protection [2019] FCCA 219 (AJS19) at [34]-[37] raised in the applicant’s submissions. The constituted Tribunal, in that case, did not consider the applicant’s protection claims at all and failed to consider the applicant’s express claims in the context of a “practical and day-to-day sense”. This differs from the Tribunal in this case, which engaged in an analysis of the applicant’s claims and found that Australia’s non-refoulement obligations would not be breached as a result of a cancellation decision and the applicant could apply for a protection visa [31]-[32].
If the Court were to draw the inference that additional claims were made and the Tribunal failed to consider them, this error would be immaterial. The balance of the decision reveals that the decision ultimately would have been the same: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 (LPDT) at [16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ.
CONSIDERATION
The Court was provided with a copy of an extract of the transcript of the relevant part of the Tribunal hearing. In response to questions about Australia’s international obligations and whether the applicant might be harmed or persecuted if returned to Fiji, the applicant stated ‘You can just get robbed, or being assaulted on the way, just walking without, you don’t know anything.” He went on to state he had been robbed in Fiji twice previously, and the police were not good at arresting the perpetrators.
First, the Court is satisfied, based on the nature of the claims of fear of harm raised, that the Tribunal correctly found they were of generalised criminal activity and did not engage Australia’s international obligations in relation to non-refoulment.
Second, the Court is not satisfied that the applicant made a claim of fear of harm in a broader context than in that regard.
Third, the Tribunal’s finding that the matters raised were of a general application and the applicant would not be targeted due to his characteristics, and that authorities would not withhold protection, was also correct. The Court accepts the first respondent’s submission that these findings were sufficiently dispositive, and no claim was left unaddressed.
The Court finds that this case can be distinguished from ASJ19 as the Tribunal did consider the claims and found they did not breach the non-refoulement obligation.
The Court does not accept that, in the circumstances of this case, it was incumbent on the Tribunal to consider the claims as ‘another basis why the cancellation decision should be revoked’. The Tribunal engaged in a comprehensive consideration of the applicant’s claims and the circumstances pertinent to whether his visa should be cancelled, after finding the grounds for cancellation existed. The requirement to consider ‘other matters’ as set out in M1, as relied upon by the applicant, does not arise in this case.
Finally, even if an error is present, the Court accepts the respondent’s submission that it is immaterial as the balance of the decision clearly indicates the same outcome would have been arrived at: LPDT.
The sole ground of judicial review has no merit.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 10 July 2025
0
5
2