Minister for Immigration, Citizenship and Multicultural Affairs v RGKY

The Minister for Immigration, Citizenship and Multicultural Affairs appealed against a decision of a primary judge of the Federal Court, who allowed an application for judicial review of a decision of the Administrative Appeals Tribunal (AAT). The AAT had affirmed the decision of a delegate of the Minister not to revoke a decision to cancel the visa of the applicant under s 501CA(4) of the Migration Act 1958 (Cth). The primary judge set aside the AAT's decision on the basis that the Tribunal made a jurisdictional error because it had failed to give proper, genuine and realistic consideration to the best interests of minor children affected by the decision individually in compliance with Direction 79 made under s 499 of the Migration Act and character evidence on which the applicant relied in support of his contention that his character had changed since his loss of liberty after his last offending and the birth of his son. The legal issues before the court were whether the primary judge erred in finding that the AAT had failed to give proper, realistic and genuine consideration to the best interests of minor children individually in compliance with Direction 79 and the character evidence on which the applicant relied. The court found that the primary judge erred in accepting that the Tribunal fell into jurisdictional error and the Minister’s appeal should be allowed. In the court's view, the Tribunal gave the requisite level of engagement to the representations made to it in this case and to the change of character evidence. The court set aside the orders made by the primary judge and dismissed the application for judicial review. The applicant was ordered to pay the respondent’s costs of the application and the respondent was ordered to pay the appellant’s costs of the appeal.