FEDERAL COURT OF AUSTRALIA

Rukuwai v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 157

This is an appeal stemming from a decision by a single judge of this Court. The judge had dismissed an application for judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal). The Tribunal had affirmed a refusal by a delegate of the Minister to revoke the cancellation of the appellant’s Special Category (Class TY) (Subclass 444) visa under section 501CA(4) of the Migration Act 1958 (Cth).

Two grounds of appeal were argued, but they essentially boiled down to a single question: whether the primary judge had erred in not finding that the Tribunal failed to consider whether the appellant’s former spouse qualified as a member of her family for the purpose of the definition of “family violence” within Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90). Additionally, the Minister filed a notice of contention, claiming that the Full Court’s decision in Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 293 FCR 509 was incorrect.

For the reasons provided below, the grounds of appeal were unsuccessful, and the appeal was dismissed.

Background Information

The Tribunal’s findings of fact included:

  • The appellant moved to Australia with her mother and stepfather in January 1986 when she was six years old.
  • She had a relatively normal childhood and early adulthood within the Māori community, and she became a mother herself in 2000.
  • After an unsuccessful relationship with the father of her first child, she married JA in 2001, with whom she had four children.
  • From 2001 to 2015, they had a happy family life.
  • However, in 2015, the appellant began using methamphetamine.
  • In 2016, her marriage to JA ended acrimoniously due to property and custody disputes.
  • In February 2017, she sent a threatening text message to JA, which resulted in her conviction and fine for using a carriage service in a menacing, harassing, or offensive manner.
  • A domestic violence order was also issued against her.
  • She formed a new relationship with CK and became pregnant in August 2017.
  • Over time, she lost custody of her children to JA, and her drug use escalated.
  • From 2018 to 2020, the appellant was involved in various criminal activities.

Visa Cancellation

On February 17, 2021, the appellant’s visa was mandatorily canceled due to her failure to pass the character test, stemming from her substantial criminal record. She was given the opportunity to make representations to the Minister regarding the revocation of the cancellation.

On February 19, 2021, she applied for revocation and made representations in support of it. However, the delegate decided not to revoke the cancellation on March 28, 2022. The appellant then appealed to the Tribunal on April 1, 2022, which affirmed the delegate’s decision and provided written reasons on July 8, 2022.

The Tribunal’s Decision

The Tribunal was tasked with determining whether there was another reason why the visa cancellation should be revoked, as per section 501CA(4)(b)(ii), given the appellant’s failure to meet the character requirements.

After making factual findings, the Tribunal considered various aspects, including the best interests of minor children in Australia affected by the decision, acts of family violence, and the expectations of the Australian community regarding character concerns.

The Tribunal concluded that the appellant had engaged in an act of family violence, although it was at the lower end of seriousness. It also considered the potential harm to the Australian community if the appellant were to resume drug use.

The Primary Judge’s Reasons

The primary judge’s decision was focused on two grounds of appeal:

  1. The Tribunal’s failure to consider whether the appellant’s former spouse was still a member of her family for the purpose of defining family violence.
  2. Whether it was legally unreasonable for the Tribunal to consider the former partner as a family member.

The primary judge found that the Tribunal had not failed to consider the former spouse as a family member. Additionally, the judge determined that it was not legally unreasonable for the Tribunal to interpret the definition of family violence broadly, including considering a former spouse as a family member.

Critical Issue on Appeal

On appeal, the appellant argued that the Tribunal had not adequately considered whether her former partner qualified as a family member according to Direction 90. The critical question was whether, given the breakdown of their marriage, living in separate houses, and forming new relationships, the former partner could still be considered a member of the appellant’s family for the purposes of Direction 90.

Consideration

The Court found that the Tribunal had indeed considered whether the former partner was a family member. It was clear from the Tribunal’s reasons that it had assessed whether the threatening text had caused the family member (former spouse) to be fearful, as required by Direction 90. The Tribunal also weighed the seriousness of this act in its decision.

Given the factual findings, including the long-lasting marriage and shared custody, it was reasonable for the Tribunal to conclude that the former spouse remained a member of the appellant’s family within the definition of Direction 90.

The Court also declined to delve into the various provisions of the Migration Act and regulations cited by the parties, as they were not relevant to the case at hand.

Pro Bono Counsel

The Court acknowledged and appreciated the pro bono representation provided by Mr. Bevan SC and Mr. Stagliorio, along with their instructing solicitors from Craddock Murray Neumann.

Disposition

In conclusion, the appeal was dismissed, and the appellant was ordered to pay costs.

Written by Ross Ahmadzai

6 Oct, 2023

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