JVGD v Minister for Immigration, Citizenship and Multicultural Affairs

In this matter, the applicant, a Sudanese national, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) not to revoke a decision to cancel his visa. The Tribunal's decision stemmed from a series of criminal offences committed by the applicant, including aggravated burglary and theft, for which he was sentenced to imprisonment. The Tribunal found that the applicant's criminal history precluded him from passing the character test under section 501(7) of the Migration Act 1958 (Cth), and it did not find sufficient grounds to revoke the visa cancellation under section 501CA(4)(b)(ii). The primary issue before the court was whether the Tribunal had made a jurisdictional error by failing to consider whether the victim of the applicant's crime was a member of his family, as required by Direction 90 of the Minister for Home Affairs. The court held that the Tribunal was required to consider whether the victim was a family member, and while the issue was not heavily contested by the applicant, the Tribunal's failure to consider it constituted a jurisdictional error. The court found that the Tribunal's reasons did not indicate sufficient consideration of the familial relationship, leading to a conclusion that the Tribunal had not properly discharged its obligation under Direction 90.

The court emphasised that the Tribunal's failure to address the question of the victim's familial relationship with the applicant meant it did not fully comply with the mandatory direction. The court noted that the Tribunal's reasons did not address the familial relationship, and the omission suggested that the Tribunal did not consider the issue. This was particularly problematic given that the nature and seriousness of the offence, including whether it constituted family violence, depended on the relationship between the applicant and the victim. The court concluded that the Tribunal's failure to engage with this matter constituted a jurisdictional error. Accordingly, the court allowed the application for judicial review, set aside the Tribunal's decision, and remitted the matter to the Tribunal for reconsideration in accordance with the law. The court also ordered the Minister to pay the applicant's costs of the proceeding, to be assessed if not agreed.