Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13 (17 February 2022) (Davies, Rangiah and Cheeseman JJ)


Catchwords:


MIGRATION – appeal from a decision of the Federal Court of Australia – where appellant’s visa cancelled on character grounds under s 501(3A) of the Migration Act 1958 (Cth) – where delegate of Minister made decision not to revoke cancellation of visa under s 501CA(4) – where Tribunal affirmed delegate’s decision not to revoke cancellation – where primary judge dismissed application for review – where primary judge held that the Tribunal erred in failing to consider the effect of non-revocation on the appellant’s mother but that the Tribunal’s failure to do so was not material – where representation made to the Tribunal that effect of non-revocation on inter alia the appellant’s mother was relevant to the Tribunal’s attribution of weight to two relevant considerations under a written direction given by the Minister under s 499(1) and with which the Tribunal was bound to comply under s 499(2A) – whether primary judge erred in finding the Tribunal’s error was not material – Held: appeal allowed.

PRACTICE AND PROCEDURE – application for leave to amend notice of grounds of appeal – where ground 1 refined but three new grounds introduced in the amended notice of appeal – where appellant was unrepresented at the time of filing the original notice of appeal – where the Minister did not oppose leave being granted in respect of ground 1 – Held: allowed in part – leave granted in respect of ground 1 only, not necessary to determine application in respect of new grounds 2 to 4.

PRACTICE AND PROCEDURE – application for leave to adduce further evidence not before the primary judge – where further evidence comprises transcript of the hearing before the Administrative Appeals Tribunal – not necessary determine application for leave to adduce evidence in light of the appellant’s success on ground 1.