Minister for Home Affairs v NBCM

In the matter of Minister for Home Affairs v NBCM, the appeal was brought before the court regarding the cancellation of a visa on character grounds under section 501(2) of the Migration Act 1958 (Cth). The central issue in this case was whether the Tribunal had erred in its treatment of the best interests of the minor children and minor grandchildren, and whether it failed to take into account a relevant consideration when cancelling the visa. Specifically, the court examined whether the Tribunal had adequately considered the impact of separation on the minor children in Australia, as required by clause 9.2(4)(d) of Direction 65.

The court found that the Tribunal had indeed failed to take into account the prescribed factor outlined in clause 9.2(4)(d) of Direction 65. This clause mandates that the likely effect of any separation from the non-citizen on the child must be considered, including the ability to maintain contact in other ways. The Tribunal had acknowledged the significant impact of separation on the minor children and their ability to maintain contact with NBCM, but this consideration was not appropriately factored into its assessment of the best interests of the minor children. The court emphasised that the Tribunal's reasons must be read as a whole, and it concluded that the Tribunal's failure to properly consider the separation's impact constituted an error. The Tribunal's acknowledgment of separation in the context of family ties did not compensate for its omission when considering the best interests of the minor children.

Ultimately, the appeal was allowed, and the decision of the primary judge was set aside. In lieu of the original decision, the court dismissed the application for judicial review and ordered the applicant to pay the costs of the first respondent. Additionally, the first respondent was ordered to pay the appellant's costs. The entry of these orders was governed by Rule 39.32 of the Federal Court Rules 2011.