JSMJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 718 (21 June 2022)
The applicant was born in a refugee camp in Tanzania in 1994. His Burundi-born parents had earlier fled from Burundi to Tanzania. The applicant entered Australia in 2006, as a 12-year-old child with his family, as a holder of a Class XB Subclass 200 Refugee – visa attached to his parent’s visa.
On 9 February 2021, the applicant’s visa was cancelled, as the delegate of the Minister determined the applicant did not pass the character test, due to a ‘“substantial criminal record”. The cancellation of the applicant’s visa would result in his potential deportation to Burundi.
The applicant requested to revoke the cancellation of his visa. However, the delegate of the Minister decided not to revoke the cancellation.
The applicant then sought the review of that decision on the merits by the Administrative Appeals Tribunal (Tribunal), to no success as the Tribunal decided to affirm the Minister’s delegate’s decision. Ms Cindy Zhao of No Borders Law Group represented the applicant at the Tribunal and raised the issue of Burundi citizenship, which has not been raised previously.
The Tribunal affirmed the decision of the Department, one of the grounds being that under section 500(6)(H) of Migration Act, the applicant is required to give information 2 days in advance and in terms of whether the applicant is a Burundi citizen.
The applicant applied for a judicial review in the Federal Court, and the court set aside the decision of the Tribunal.
Federal Court Findings: section 500(6)(H) Migration Act 1958 – is not preclusive
500 (6H) If:
(a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
The Tribunal failed to act on representations before it and also failed to make even the most cursory enquiry to follow up on the subject of citizenship, where failure constituted a failure to afford applicant procedural fairness and a failure by the Tribunal to exercise jurisdiction.
- Set aside the decision of the Administrative Appeals Tribunal to affirm the decision of a delegate of the Minister not to revoke the cancellation of the applicant’s Class XB Subclass 200 Refugee visa.
- The Administrative Appeals Tribunal to re-determine the applicant’s application for the review of the original decision according to law.
- The Minister for Immigration pay for the applicant’s costs and incidental to the application.
Ms Cindy Zhao is the principal lawyer from No Borders Law Group, who assisted the applicant in this matter.
If you require any assistance with judicial review matters, please contact Ms Zhao at 07 3876 4000 or [email protected].
Credits: Case Summary written by Daryl Hamley, migration lawyer from No Borders Law Group