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

• Jurisdiction: Australia Federal only
• Judgment Date: 16 July 2021
• Neutral Citation: [2021] FCAFC 125
• Date: 16 July 2021
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125

Appeal from:	Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1223
File number:	NSD 1072 of 2020
Judgment of:	KATZMANN, DERRINGTON AND O’BRYAN JJ
Date of judgment:	16 July 2021
Catchwords:	MIGRATION LAW – decision of the Administrative Appeals Tribunal not to revoke mandatory cancellation of visa under s 501CA(4) of the Migration Act 1958 (Cth) –whether Tribunal erred in formation of state of satisfaction for the purpose of s 501CA(4) – whether primary considerations stated in Ministerial Direction 79 were mandatory considerations in forming state of satisfaction – whether mandatory considerations included best interests of appellant’s child – whether best interests of child raised in representations pursuant to s 501CA(3) – whether best interests of child clearly arose during hearing before Tribunal – whether Tribunal considered the best interests of the appellant’s child – whether material before Tribunal on which consideration could occur – the migration status of the child consequent upon the cancellation of the appellant’s visa and the revocation of the cancellation –whether Minister advanced legally erroneous submissions to Tribunal as to migration status of the child – whether erroneous submissions material to the Tribunal’s decision –whether Tribunal failed to perform its statutory duty to consider the best interests of the appellant’s child as a primary consideration – appeal dismissed ; STAUTORY INTERPRETATION – meaning of s 140(3) of the Migration Act 1958 (Cth) – whether s 140(3) applicable to the cancellation of a visa pursuant to s 501 ; PRACTICE AND PROCEDURE – application for leave to raise new ground of review on appeal – whether adequate explanation provided for failure to raise ground of review before primary judge – whether proposed new ground has sufficient merit – leave granted
Legislation:	Acts Interpretation Act 1901 (Cth) s 15AA Australian Citizenship Act 2007 (Cth) s 12(1)(b) Migration Act 1958 (Cth) ss 78(1), 128, 133A, 133C, 133F, 134, 137J, 137L, 137N, 140(1), 140(2), 140(3), 140(4)(b), 486D, 499(1), 499(2A), 501(3), 501(3A), 501A(3), 501C, 501CA(3A), 501CA(4), 501CA(5), 501CA(6) Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) Migration Legislation Amendment Act 1994 (Cth) Migration Reform Act 1992 (Cth) Migration Regulations 1994 (Cth) Schedule 2 cl 444.511 United Nations Convention on the Rights of the Child. Opened for signature 20 November 1989. 1577 UNTS 3. (entered into force 2 September 1990)
Cases cited:	AAD16 v Minister for Immigration and Border Protection [2018] FCA 1433 AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 Ali v Minister for Home Affairs (2020) 278 FCR 627 Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 Carrascalao v Minister for Immigration and Border Immigration and Border Protection (2017) 252 FCR 352 Chevron USA Inc v National Resources Defence Council Inc 467 US 837 (1984) Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Coulton v Holcombe (1986) 162 CLR 1 CSZ15 v Minister for Immigration and Border Protection [2017] FCA 706 DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97 DKT16 v Minister for Immigration and Border Protection [2019] FCAFC 208 DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184 EXV17 v Minister For Home Affairs [2018] FCA 1780 Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 338 GBV18 v Minister for Home Affairs (2020) 274 FCR 202 Guclukol v Minister for Home Affairs (2020) 279 FCR 611 Guclukol v Minister for Home Affairs (2020) 279 FCR 611 Gupta v Minister for Immigration and Border Protection (2017) 255 FCR 486 H v Minister for Immigration and Multicultural Affairs (2004) 63 ALD 43 HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121 Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 Lesianawai v Minister for Immigration [2012] FCA 897; 131 ALD 27 Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1 Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 Minister for Home Affairs v Buadromo (2018) 267 FCR 320 Minister for Home Affairs v Omar (2019) 272 FCR 589 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 Nweke v Minister for Immigration and Citizenship [2012] FCA 266; 126 ALD 501 NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Raibevu v Minister for Home Affairs [2020] FCAFC 35 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 Rokobatani v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 Sami v Minister for Immigration and Citizenship [2013] FCAFC 128; 139 ALD 1 SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313 Singh v Minister for Home Affairs (2020) 274 FCR 506 Singh v Minister for Immigration and Border Protection (2018) 261 FCR 556 Spruill v Minister for Immigration and Citizenship [2012] FCA 1401; 135 ALD 45 SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779 SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531 Uelese v Minister for Immigration (2015) 256 CLR 203 Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 ...