Application for Review of Non-revocation of Visa Cancellation

Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1368 (5 November 2021)

The plaintiffs applied for judicial review of the Administrative Appeals Tribunal decision not to revoke visa cancellation under s 501CA(4) of Migration Act 1958 (Cth).  The Court, in determining whether the Tribunal failed to adequately consider the interests of all minor children under cl 13.4 Direction No. 79, relied upon the Administrative Appeals Tribunal Act 1975 (Cth) and the Migration Act 1958 (Cth). 

Facts:

The applicant, Robert Aotoa Davis, seeks an order quashing a decision of the second respondent (Tribunal) for jurisdictional error and an order remitting the matter to the Tribunal for determination according to law.  

Mr Davis was the holder of a Special Category (Class TY)(subclass 444) visa until 5 December 2019 when it was cancelled by a delegate of the Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs pursuant to s 501(3A) of the Migration Act 1958 (Cth). 

He was invited to make representations to the Minister about revocation of the cancellation decision, and did so in accordance with s 501CA(4)(a) of the Act. A delegate of the Minister decided not to revoke the cancellation decision and Mr Davis applied to the Tribunal for review of that decision.  

On 6 April 2021, the Tribunal affirmed the decision of the delegate.  Mr Davis now seeks judicial review of the Tribunal’s decision not to revoke the cancellation decision.  Mr Davis advances as ground of review, that the Tribunal failed to complete its exercise of its jurisdiction and that the Tribunal failed to expressly determine whether revocation was in the best interests of the applicant’s three grandchildren as required by cl 13.2(1).  Furthermore, it was claimed that the Tribunal failed to consider this consideration concerning the applicant’s step-son (despite finding that the applicant was the ‘step-father’ to the step-son and had performed the role of a ‘father figure’ to the child).

The Tribunal noted that pursuant to s 501CA(4) of the Act it may revoke the original decision to cancel a visa if it is satisfied:

(i) that the person passes the character test as defined by s 501; or

(ii) that there is another reason why the original decision should be revoked. 

It determined that, by reason of his criminal record, Mr Davis did not pass the character test, and that accordingly it was necessary to decide whether there is another reason the original decision should be revoked.  

The Tribunal observed that the three primary considerations identified are:

(A) protection of the Australian community from criminal or other serious conduct;

(B) the best interests of minor children in Australia; and

(C) expectations of the Australian community. 

Mr Davis submits that the Tribunal failed to consider the impact of the decision on his third grandchild, failed to make a determination as to whether revocation was in the best interests of the three grandchildren and did not consider the grandchildren at all in weighing up the conclusions.  

Secondly, it failed to determine whether revocation was in the best interests of either his stepson or his nephew or to refer to either in weighing his conclusions. 

Thirdly, the Tribunal failed to consider the extent to which Mr Davis is likely to play a positive parental role in the future for either his two biological children or his stepson. 

Fourthly, whilst it acknowledged that it was required to weigh up relevant considerations, in so doing, the Tribunal omitted to make any reference to any of his three grandchildren, his stepson or his nephew.

Issue:

Whether or not the Tribunal failed to adequately consider the interests of all minor children under cl 13.4 Direction No. 79. 

Applicable law:

Administrative Appeals Tribunal Act 1975 (Cth) ss 43(3)-(5) - provides that the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)  affirming the decision under review;

(b)  varying the decision under review; or

(c)  setting aside the decision under review and:

(i)  making a decision in substitution for the decision so set aside; or

(ii)  remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

Analysis:

In its reason, the Tribunal “takes into account” Mr Davis’ limited role in the lives of “his grandchildren and step-son” because of his incarceration and considers that this factor, although weighing in favour of revocation of the mandatory cancellation, does not do so as heavily as it might. 

It is ambiguous whether the reference to “grandchildren” is to the two identified by the initials AM and KM in the previous paragraph, or all three grandchildren referred to.  Having identified both children in [97] of its reasons, the Tribunal could easily have included mention of stepson AM and grandchild C in [101], but it did not do so.  There are aspects of the circumstances of each that suggest that this was a deliberate choice. 

In the case of stepson AM, the Tribunal found at [98] that AM was a child for whom Mr Davis performed the role of a father figure assuming that the Tribunal intended to make these findings about Mr Davis’ relationship with his stepson AM, as it purported to, then that role is likely to be greater than or at least different to that which he played towards the grandchildren and the nephew identified in [101].

Conclusion:

The Court ordered the decision of the Tribunal to be quashed and ordered to remit the proceedings to the Tribunal differently constituted for determination according to law.

1. A writ of certiorari be issued quashing the decision of the Second Respondent dated 6 April 2021.

2. The matter be remitted to the Second Respondent, differently constituted, for determination according to law.

3. The First Respondent pays the Applicant’s costs.