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

XXBN, a Lebanese citizen, appealed against the decision of the Administrative Appeals Tribunal (AAT) affirming the delegate's decision not to revoke the cancellation of his visa. The visa was cancelled because of his criminal record, leading to the mandatory cancellation under section 501(3A) of the Migration Act 1958 (Cth). The appeal raised issues about whether the Tribunal erred in its interpretation of Direction No 79 and whether it appropriately considered the impact on the victims, including the appellant's immediate family members who were also victims of his crimes. The court was tasked with deciding whether the Tribunal misdirected itself regarding the operation of paragraph 13.2(4)(a) of Direction No 79 and if it failed to consider the effect of non-revocation in both the appellant's and his victims' capacities.

The court considered the arguments presented by the appellant regarding the Tribunal's interpretation of Direction No 79. The appellant argued that the Tribunal erroneously considered itself bound by Direction No 79 to allocate less weight to the best interests of minor children affected by the decision, when Direction 79 at paragraph 9.2(4)(a) merely stated that less weight should “generally” be given in such circumstances. The court examined the Tribunal's reasoning and found that it had properly considered the relevant factors and evidence, and appropriately applied the Direction. The Tribunal acknowledged that the appellant had not had a substantial physical presence in the lives of his children for significant periods, and it was reasonable to allocate less weight to the factor of the best interests of the minor children.

The court concluded that the Tribunal's decision was not flawed and that it had correctly applied the relevant legal principles and the Direction. The Tribunal's consideration of the impact on the victims, including the appellant's immediate family members, was thorough and appropriate. The court found that there was no basis for allowing the appeal.

The final orders of the court were to dismiss the appeal and for the appellant to pay the first respondent's costs as agreed or assessed. The costs order was to be dealt with in accordance with Rule 39.32 of the Federal Court Rules 2011.