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

Kura, a New Zealand national with a visa held under the Special Category (Subclass 444) Visa, sought judicial review of the decision of the Administrative Appeals Tribunal (AAT) which affirmed the Minister’s decision not to revoke the cancellation of his visa under s 501CA(4) of the Migration Act 1958 (Cth). The Tribunal's decision was based on the Applicant’s character, and the risk he posed to the Australian community. Kura argued that the Tribunal had made an error in fact in considering that he had been given a second chance by the Drug Court but had not taken advantage of it, and that the Tribunal had also misapplied the relevant provisions of Ministerial Direction No. 79.

The primary legal issues for the Court were whether the Tribunal's decision contained a jurisdictional error by misapplying the relevant provisions of Ministerial Direction No. 79 and whether there was a jurisdictional error due to the Tribunal’s misapprehension of a critical fact. The Court found that the Tribunal had indeed made a jurisdictional error by misapplying sub-paragraph 6.3(6) of Ministerial Direction No. 79, when the applicable provisions were sub-paragraphs 6.3(5) and 6.3(7). The Court also found that the Tribunal had erred in its finding that the Applicant had not taken advantage of a second chance given to him by the Drug Court. The error was found to be in respect of a critical matter, and thus established a jurisdictional error. Consequently, the Court set aside the decision of the AAT, remitted the matter to the Tribunal for determination according to law and ordered the Minister to pay the Applicant’s costs.