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

Case [2025] FCA 707


FEDERAL COURT OF AUSTRALIA

Stamekovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 707

Review of : Stamenkovic v Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 607
File number(s): QUD 241 of 2024
Judgment of: MEAGHER J
Date of judgment: 30 June 2025
Catchwords: MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal – Where Tribunal affirmed the decision of a delegate of the Minister not to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) – Tribunal bound by a direction issued under s 499 of the Migration Act 1958 (Cth) to consider the best interests of minor children in Australia – Whether Tribunal failed to make findings in the best interests of the child – Whether Tribunal failed to make findings for each individual child – Whether Tribunal failed to consider substantial, clearly articulated claim – Whether Tribunal failed to give proper, genuine and/or realistic consideration – Whether denial of procedural fairness
Legislation: Migration Act 1958 (Cth) ss 499(1), 499(2A), 501, 501(3A), 501(6)(a), 501(7)(c), 501CA, 501CA(4), )
Cases cited:

ADU18v Minister for Home Affairs [2020] FCA 366

AXT19 v Minister for Home Affairs [2020] FCAFC 32

Brownlie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436

Calveyv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104

GCRM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 170 ALD 319

Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628

Ismailv Minister for Immigration, Citizenship and Multicultural Affairs (2024) 417 ALR 36

Lesianawai v Minister for Immigration and Citizenship (2012) 131 ALD 27

Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 610

McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) (2020) 170 ALD 538

Minister for Home Affairs v NBCM (2019) 167 ALD 215

Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 (2020) 280 FCR 178

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398

NBCM v Minister for Home Affairs [2019] FCA 1013

Nweke v Minister for Immigration and Citizenship (2012) 126 ALD 501

Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582

Spruill v Minister for Immigration and Citizenship (2012) 135 ALD 45

Titoav Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 163

Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203

Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 59
Date of hearing: 5 February 2025
Counsel for the Applicant: Mr S Kikkert
Counsel for the Respondents: Mr JD Byrnes
Solicitor for the Respondents: The Australian Government Solicitor
Solicitor for the Respondents: Administrative Appeals…

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AGLC
Stamekovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 707
Case
[2025] FCA 707
Decision Date

CaseChat Overview and Summary

Stamekovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerns an application for judicial review of a decision of the Administrative Appeals Tribunal (AAT). The applicant, Stamekovic, sought the revocation of a visa cancellation decision made under section 501CA of the Migration Act 1958 (Cth). The AAT affirmed the Minister's decision not to revoke the cancellation, and Stamekovic challenged this decision on several grounds including whether the AAT properly considered the best interests of his minor children and whether it failed to consider a substantial claim. The Federal Court was tasked with determining whether the AAT's decision was legally sound and whether it adhered to principles of procedural fairness.

The court examined whether the AAT adequately considered the best interests of Stamekovic's children, as mandated by Direction no. 99, and whether it failed to make findings for each child individually. It also assessed whether the AAT properly evaluated a substantial, clearly articulated claim and if it gave genuine and realistic consideration to the application. Additionally, the court considered whether the AAT's decision denied Stamekovic procedural fairness. The court noted that the AAT had assessed the applicant's criminal history, likelihood of reoffending, and ties to Australia, concluding that these factors heavily weighed against revoking the visa cancellation. The court found that the AAT did not err in its assessment or fail to consider the relevant directions and evidence.

The Federal Court held that the AAT had appropriately exercised its discretion and followed the required legal framework. The court dismissed the application for judicial review and ordered Stamekovic to pay the costs of the first respondent. If the second respondent wished to contest the costs order, written submissions were to be filed by a specified date, with costs to be determined on the papers. Otherwise, Stamekovic would pay the second respondent's costs as agreed or taxed. The court's decision underscored the importance of adhering to statutory directions and the proper exercise of discretion by the AAT in visa cancellation matters.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the first respondent’s costs as agreed or taxed.

3. Within three working days of the date of these orders the second respondent is to provide to the Court an indication of whether they wish to be heard with respect to the costs order made in order 2 above.

4. If, pursuant to order 3, the second respondent wishes to be heard with respect to the costs order made in order 2 above, then:

(a) By 4:00pm AEST on 7 July 2025, the parties are each to file written submissions of no more than three pages confined to the question of costs; and

(b) Costs will be determined on the papers.

5. Pursuant to order 3 above, if the second respondent does not wish to be heard with respect to costs, the applicant must pay the second respondent’s costs as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 501(2) of the Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a “substantial criminal record”. Section 501(7)(c) of the Act provides that a person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more”. Section 501CA of the Act enables the revocation of a decision to cancel a visa made pursuant to s 501(3A) of the Act. It reads as follows:501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:(a)would be the reason, or a part of the reason, for making the original decision; and(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.(3) As soon as practicable after making the original decision, the Minister must:(a) give the person:(i) a written notice that sets out the original decision; and(ii) particulars of the relevant information; and(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.(3A) The notice under subsection (3) must be given in the prescribed way.(4) The Minister may revoke the original decision if:(a)the person makes representations in accordance with the invitation; and(b)the Minister is satisfied:(i) that the person passes the character test (as defined by section 501); or(ii) that there is another reason why the original decision should be revoked.(5) If the Minister revokes the original decision, the original decision is taken not to have been made.(6) Any detention of the person that occurred during any part of the period: (a) beginning when the original decision was made; and(b) ending at the time of the revocation of the original decision; is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.(7) A decision not to exercise the power conferred by subsection (4) is not reviewable by application under Part 5.Note: For notification of decisions under subsection (4) to not revoke, see section 501G. Pursuant to s 499(2A) of the Act, a person or body exercising powers or performing functions under the Act is required to comply with directions made by the Minister under s 499(1). In the present case, Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99 or the Direction), commenced on 3 March 2023 and is the relevant direction. Clause 5 is described as the preamble to the Direction and at cl 5.1(4), states that the purpose of the Direction “is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act”. Clause 5.2 of the Direction sets out principles which “provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA”.

Ratio Decidendi

Legal Principle Established

Clause 9 of the Direction sets out four “Other considerations” to be taken into account where relevant: a)legal consequences of the decision [Other Consideration 1];b)extent of impediments if removed [Other Consideration 2];c)impact on victims [Other Consideration 3];d)impact on Australian business interests [Other Consideration 4]. TRIBUNAL DECISION The hearing before the Tribunal took place on 26 and 27 March 2024. The applicant appeared in person, and the Minister was represented by the Australian Government Solicitor. The Tribunal set out details of the applicant’s adult offending, which it noted began in 1985 and continued until as recently as 2022: TD at [23] – [27], [33] – [40], [42] – [70], [72] – [83], [85] – [86], [88] – [94], [97], [102] – [103], [112], [115]. With respect to the protection of the Australian community from criminal or other serious conduct the Tribunal considered the applicant’s “family violence” at [158] and his violence towards women at [159] of the TD. It discussed the applicant’s “custodial terms” and recidivism at [164] and [166] of the TD. The applicant’s “serial” offending and “pattern of life as an anti-social, indeed criminal element in our society” was also examined at [166] and [168] of the TD. The Tribunal also referred to “false or misleading information” provided by the applicant at various times throughout the process. At [177] – [179] of the TD, the Tribunal considered the “nature of the harm” posed by the applicant should he “engage in further criminal or other serious conduct” and concluded that it was “very serious” at [179]. This was informed by the applicant’s “violent conduct against various victims, including women and even his own sons”: TD at [179]. The Tribunal assessed the “likelihood of the non-citizen engaging in further criminal or other serious conduct”, as required under cl 8.1.2(2)(b) of the Direction at [180] – [185] of the TD, noting that the applicant has been a “lifelong offender” with “nothing in his record to suggest that he has either the capacity or inclination to become a law-abiding member of our community”: TD at [180]. The applicant’s psychologist’s evidence, his record of substance abuse and offending under the influence, and the correctional services’ assessment of the applicant as at a “high risk of reoffending” were considered at [181] – [185] of the TD. Consequently, the Tribunal concluded that Primary Consideration 1 weighed “extremely heavily against revocation of the Applicant’s visa cancellation”: TD at [186]. As to whether the applicant engaged in family violence, the Tribunal concluded that Primary Consideration 2 weighed “very heavily against revocation of the cancellation of the Applicant’s visa” on the basis of evidence going to family violence discussed in their analysis of Primary Consideration 1: TD at [187] – [189]. Dealing with the strength, nature and duration of the applicant’s ties with Australia the Tribunal noted that while he has had lengthy periods of absence the applicant’s “formative years” were spent in Australia: TD at [190]. The Tribunal considered that the applicant’s “contribution to the Australian community has been overwhelmingly negative”: TD at [191]. It referred to the applicant’s “serial” offending, his involvement with “a criminal, drug abusing, sub-culture”, his failure to pay taxes despite receiving the disability support pension, and his false claims of employment as a carer for 12 years: TD at [191]. The Tribunal took into account the applicant’s family, specifically his children and grandchildren, and described those relationships as “complex”: TD at [192] – [196]. Ultimately, the Tribunal concluded that Primary Consideration 3 weighed “moderately in favour of revocation of the cancellation of the Applicant’s visa”: TD at [197].