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
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
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
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
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
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Decision
Reasons for decision
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].