HWLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The Federal Court was presented with an application for judicial review of the decision of the Administrative Appeals Tribunal (AAT) to not revoke the cancellation of the visa of a Sierra Leonean citizen. The applicant had been working with the United Nations and had lived in Australia with his wife and daughter since 2011. He had been diagnosed with mental health conditions and had a criminal history that included offences of indecent assault and assault with indecent intent. His visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) due to failure to meet the character test. The AAT was required to consider whether there were other reasons to revoke the cancellation under Direction 79.

The court found that the AAT failed to meaningfully engage with the evidence and submissions when assessing the impediments to the applicant’s return to Sierra Leone. The court held that the AAT had not properly considered the medical evidence and submissions regarding the applicant’s mental health and the best interests of his child. The court also found that the AAT was permitted to impugn the essential facts giving rise to the power to cancel the visa. The court concluded that the AAT’s decision was flawed and remitted the matter to the AAT for reconsideration.

The court allowed the application for review, set aside the AAT’s decision, and remitted the matter to the AAT for reconsideration according to law. The court also ordered that the respondent pay the applicant’s costs of the application. The court’s decision highlights the importance of the AAT properly considering all relevant evidence and submissions when assessing the best interests of a child and the impediments to the applicant’s return to their country of nationality.