Jama v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 148 – FCA Court Summary

In the matter before the Federal Court of Australia, the matter involved Jamaal Jama, hereinafter referred to as the “appellant,” and the Minister for Immigration, Citizenship, and Multicultural Affairs, designated as the “first respondent,” along with the Administrative Appeals Tribunal, identified as the “second respondent,” an order was issued on September 7, 2023, setting forth several judicial directives:

The appellant’s appeal was allowed.

Previous orders issued by the Federal Court on March 28, 2023, were nullified.

A writ of certiorari was issued, thereby annulling the decision rendered by the Administrative Appeals Tribunal on February 5, 2021.

The matter was remanded to the Administrative Appeals Tribunal, albeit with a different panel, for a renewed assessment in accordance with the principles of law.

The first respondent, specifically the Minister for Immigration, was directed to assume responsibility for the appellant’s costs associated with the initial application and subsequent appeal, subject to potential taxation should the parties fail to agree.

It was stipulated that the first respondent be officially recognized as the “Minister for Immigration, Citizenship, and Multicultural Affairs.”

The crux of this legal proceeding pertains to the cancellation of Jamaal Jama’s visa under the provisions of Section 501(3A) of the Migration Act 1958 (Cth). The basis for this cancellation stemmed from the appellant’s criminal conviction on June 8, 2019, for aggravated armed robbery, resulting in a four-year term of imprisonment. Mr. Jama, originally from New Zealand, had been residing in Australia since 2008 when he arrived at the age of 17.

The Administrative Appeals Tribunal, herein referred to as the “Tribunal,” upheld the visa cancellation on February 5, 2021, elucidating its reasoning in the published document titled “Reasons.” Subsequently, an application for judicial review of the Tribunal’s decision was presented to the Federal Court of Australia, which, regrettably, met with dismissal on March 28, 2023.

The appellant, seeking recourse, lodged a Notice of Appeal on April 27, 2023, contending primarily:

The primary judge erred in failing to acknowledge that the Tribunal misconstrued paragraph 14.2 of “Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA,” abbreviated as “Direction 79,” thus posing an erroneous query.

The primary judge was at fault in neglecting to discern that the Tribunal’s conclusion, asserting that the best interests of minor children in Australia did not weigh for or against the revocation of the Cancellation decision, represented an unreasonable, irrational, and illogical perspective.

Ultimately, the court decreed in favor of the appellant, deeming the appeal meritorious. The court’s rationale rested on the finding that the Tribunal had committed an error by double-counting the gravity of the appellant’s offenses. This double-counting transpired firstly during the assessment of the strength, nature, and duration of the appellant’s ties to Australia under paragraph 14.2 of Direction 79, thereby assigning it only slight weight, and subsequently, in the overall assessment where the Tribunal concluded that the weight of factors favoring revocation, including the strength of ties, was outweighed by the severity of the appellant’s offenses.

The court determined that this constituted a misinterpretation of Direction 79 and was indeed material. In light of this, the court allowed the appeal, invalidated prior orders, and mandated a reevaluation of the matter by the Tribunal.

Written by Ross Ahmadzai

8 Sep, 2023

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