Minister for Immigration, Citizenship and Multicultural Affairs v RGKY

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 02 November 2022
• Neutral Citation: [2022] FCAFC 177
• Date: 02 November 2022

FEDERAL COURT OF AUSTRALIA

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

Appeal from:	RGKY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 750
File number(s):	NSD 752 of 2021
Judgment of:	COLLIER, FARRELL AND HALLEY JJ
Date of judgment:	2 November 2022
Catchwords:	MIGRATION – where the primary judge allowed an application for judicial review of a decision of the Administrative Appeals Tribunal – where the AAT affirmed the decision of a delegate of the Minister not to revoke a decision to cancel the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) – where the primary judge set aside the AAT’s decision on the basis that the Tribunal made a jurisdictional error because it had failed to give proper, genuine and realistic consideration to the best interests of minor children affected by the decision individually in compliance with Direction 79 made under s 499 of the Migration Act and character evidence on which the applicant relied in support of his contention that his character had changed since his loss of liberty after his last offending and the birth of his son – whether the primary judge erred in so finding – appeal allowed.
Legislation:	Migration Act 1958 (Cth) ss 499, 501, 501CA
Cases cited:	Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155; (2019) 272 FCR 131 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112 Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 DCR19 v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCA 501 EGH19 v Minister of Home Affairs [2020] FCA 692 GBV18 v Minister for Home Affairs (2020) 274 FCR 202 Guclukol v Minister for Home Affairs [2020] FCAFC 148; (2020) 279 FCR 611 Karan v Minister for Home Affairs [2019] FCAFC 139 Maioha v Minister for Immigration and Border Protection [2018] FCAFC 216 Makarov v Minister for Home Affairs [2021] FCAFC 129 McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238 Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Nahi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1169 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1710, (2019) 167 ALD 449 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 RGKY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 750 Sami v Minister for Immigration and Citizenship [2013] FCAFC 128 Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31 SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; (2021) 285 FCR 187 Uelese v Minister for Immigration [2015] HCA 15; (2015) 256 CLR 203
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	210
Date of hearing:	12 November 2021
Counsel for the Appellant:	Mr G Johnson SC with Mr T Reilly
Solicitor for the Appellant:	MinterEllison
Counsel for the First Respondent:	Ms De Ferrari SC with Dr J Donnelly
Solicitor for the First Respondent:	Zarifi Lawyers
Counsel for the Second Respondent:	The Second Respondent submitted to any order of the Court, save as to costs

ORDERS

		NSD 752 of 2021
BETWEEN:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS Appellant
AND:	RGKY First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	COLLIER, FARRELL AND HALLEY JJ
DATE OF ORDER:	2 November 2022

THE COURT ORDERS THAT:

1. The name of the appellant be amended to Minister for Immigration, Citizenship and Multicultural Affairs.

2. The appeal is allowed.

3. The orders made by the primary judge on 28 June 2021 are set aside and in lieu thereof it be ordered that:

(a) The application for judicial review of the decision of the second respondent dated 26 October 2020 be dismissed; and

(b) The applicant must pay the first respondent’s costs as agreed or taxed.

4. The first respondent must pay the appellant’s costs of the appeal as agreed or taxed.

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

REASONS FOR JUDGMENT

COLLIER J:

1 Before the Court is an appeal from the decision of a single judge (primary Judge) of this Court delivered on 28 June 2021 in RGKY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 750 (primary decision). In that matter the primary Judge allowed an appeal from a decision of the Administrative Appeals Tribunal (Tribunal) not to revoke the mandatory cancellation of the appellant’s class TY subclass 444 Special Category (Temporary) Visa (visa) pursuant to under s 501(3A) of the Migration Act 1958 (Cth)(Migration Act). In doing so, the primary Judge made Orders setting aside the Tribunal’s decision and remitted the matter to the Tribunal for determination according to law.

2 The appellant now appeals the primary decision on the following grounds:

1. His Honour erred by upholding Ground One of the application before him and, in particular, his Honour erred by finding that the Tribunal made a jurisdictional error in the following (alleged) ways (when it did not in fact do so):

a. The Tribunal failed to engage in an active intellectual process in determining what the best interests of the RGKY’s child were and what weight should be given to them.

b. The Tribunal had ignored evidence of RGKY, MQ and other evidence.

c. The Tribunal failed to make any finding what the best interests of RGKY’s child would be.

d. The Tribunal failed to consider a claimed change of character after RGKY went into custody following the birth of his son.

e. There was a duty upon the Tribunal to inquire and that this was breached.

f. The Tribunal failed to make findings what was in the best interests of RGKY’s...