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

In this matter, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to set aside a decision to cancel the visa of the first respondent, LJTZ, a Burundian national residing in Australia. The primary issue before the court was whether the AAT had misapplied s 501CA(4) of the Migration Act 1958 (Cth) and failed to correctly apply Ministerial Direction 79, which required consideration of the nature of the harm and the likelihood of further criminal or serious conduct cumulatively. The court was also asked to consider if the notion of basic living standards in Burundi was applied correctly by the AAT.

The court found that the AAT had correctly applied Direction 79. The requirement to consider the nature of harm and the likelihood of further criminal or serious conduct cumulatively means they must be considered together and in combination. The court observed that the AAT had acknowledged this requirement and had considered both limbs together in its assessment. Even though the AAT initially considered each limb sequentially, this was a necessary step towards the cumulative assessment. The court held that the AAT's reasons demonstrated a fair, holistic reading of the matter and did not indicate any oversight of the cumulative consideration requirement.

The court dismissed the Minister’s application for review, finding that the AAT had not erred in its application of the Migration Act and Direction 79. The court ordered that the time within which the Applicant may commence the originating application for review of a migration decision under s 477A of the Migration Act 1958 (Cth) is extended to 2 September 2020, that the Amended Draft Originating Application stand as the Originating Application for Review, and that the Originating Application for Review be dismissed. The Applicant was also ordered to pay the First Respondent’s costs of and incidental to the application to be taxed in default of agreement.