Smith v Minister for Immigration, Citizenship and Multicultural Affairs

In the case of Smith v Minister for Immigration, Citizenship and Multicultural Affairs, the applicant, Mr Smith, sought judicial review of the Administrative Appeals Tribunal's (AAT) decision to affirm the Minister's delegate's decision not to revoke the cancellation of his visa under section 501CA(4) of the Migration Act 1958 (Cth). The delegate had found that Mr Smith did not pass the character test on the ground in section 501(6)(a) of the Act, and the AAT additionally found that Mr Smith did not pass the character test on grounds in sections 501(6)(c), (d)(i) and (d)(ii). The central legal issues before the court were whether the AAT exceeded its jurisdiction by asking itself a "wider question" and whether it denied Mr Smith procedural fairness by relying upon additional grounds on which he failed the character test. Additionally, the court considered whether the AAT failed to give proper consideration to one of Mr Smith's claims.

The court held that the AAT did not exceed its jurisdiction, as it was required to remake the decision standing in the shoes of the delegate. The court did not follow the decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033. However, the court found that the AAT denied Mr Smith procedural fairness by relying upon additional grounds on which he failed the character test. Nonetheless, the court held that this error was not material. The AAT also did not fail to give proper consideration to one of Mr Smith's claims.

The court dismissed the application for judicial review and ordered that the applicant pay the first respondent's costs as agreed or taxed. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.