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

Motufoaki, the appellant, brought this appeal against the decision of the Federal Circuit and Family Court of Australia, which dismissed his application for judicial review of a decision of the Administrative Appeals Tribunal (AAT). The AAT had refused to revoke a decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel the appellant’s visa. The cancellation was made under s 501CA(4) of the Migration Act 1958 (Cth) after the appellant had been sentenced to a term of imprisonment of 12 months or more for an offence against an Australian law. The appellant claimed that the AAT did not have jurisdiction to make the decision because it had not given him an opportunity to be heard on whether another cancellation power should have been used. He also claimed that the AAT’s decision was legally unreasonable because it did not refer in terms to two witness statements in considering the nature, strength and duration of his links to the Australian community. The appellant further claimed that the AAT’s decision involved a denial of procedural fairness or some other jurisdictional error.

The court held that the appeal should be dismissed because none of the points raised on the appeal were raised before the primary judge. The court noted that an appeal from a judge of this Court is brought under s 24 of the Federal Court of Australia Act 1976 (Cth). An appeal under that section is in the nature of a rehearing in which error by the primary judge must be shown. The court held that leave should not be granted to agitate points on appeal that were not raised before the primary judge, unless there were exceptional circumstances. The court found that the appellant had not shown any exceptional circumstances to justify leave to raise the new points on appeal.

The court also held that the appeal should be dismissed on the merits. The court found that the AAT had jurisdiction to make the decision and that the decision was not legally unreasonable. The court held that the AAT had considered all relevant factors in making its decision and that the appellant had not shown any error in the AAT’s consideration of the witness statements. The court found that the AAT’s decision did not involve a denial of procedural fairness or some other jurisdictional error.

Leave be granted to the appellant to substitute the Administrative Appeals Tribunal as the second respondent. Leave be granted to the appellant to file an amended notice of appeal in the form of the “Proposed Amended Notice of Appeal” received by the Court on 26 October 2022. Leave to raise the grounds listed in that document be refused. The appeal be dismissed. The appellant pay the first respondent’s costs.