Is an Inferior Court Bound to a Decision of a Superior Court?
This case considered a section 501 cancellation where the effect of the visa holder remaining in Australia on the victim was positive. The single judge was only able to deviate from a previous decision of the Full Court of the Federal Court of Australia where the cases could be differentiated on the facts.
Can the impact of revocation of a s501 visa cancellation be positive on the victim?
The Applicant had his visa mandatorily cancelled under section 501CA(3) of the Migration Act 1958 (‘the Act’). He had been sentenced to 5 years imprisonment for aggravated sexual assault and break and enter with intent (DV). The victim of this offence was the Applicant’s previous partner and the mother of his child.
The delegate of the Minister was not satisfied that the decision should be revoked, and the AAT affirmed this non-revocation decision. The Applicant then appealed this decision to the Federal Court of Australia seeking the following remedies:
Certiorari - to quash the decision made by the AAT; and
Mandamus - requiring the AAT to remake the decision according to the law.
What were the grounds of appeal?
The Applicant appealed the AAT decision to the Federal Court on the following ground:
Failure to exercise jurisdiction - The AAT had failed to consider the information and evidence in accordance with clause 14.4(1) of Ministerial Direction No. 79
What is Clause 14.4(1)?
Clause 14.4(1) of Ministerial Direction No 79 states that the “Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims” should be considered where possible.
The issue in question was whether the impact on the victim of the Applicant remaining in Australia could be positive. The victim, the Applicant’s ex-partner and mother of his child, submitted the following information in support of the revocation of his visa cancellation:
The Applicant had offended under the influence of alcohol and will not make the same mistake again.
She had forgiven the Applicant and wished for him to be given another chance.
It would make her life much more difficult if she had to raise their child without the Applicant.
What has previous case law said about positive impacts on victims for s501 cancellation revocations?
DKN20 v Minister for Immigration, Citizenship and Migrant Services and Multicultural Affairs [2021] FCAFC 97 (‘DKN20’)
In DKN20 , the Full Court of the Federal Court of Australia held that the positive impact of the cancellation revocation on the applicant’s ex-partner could not be considered. She had been referred to throughout the judgement and the submissions as the ‘victim’ of the applicant’s offence.
The Respondent (the Minister for Immigration) in this case argued that the single judge is bound by the decision in DKN20 and therefore, the AAT did not have to consider the positive impact of revocation on the victim.
Is the single judge bound by the decision of the full court?
The single judge accepted that he was bound by the decision of the full court in DKN20, however, the present case could be distinguished from DKN20 in the following aspects:
In DKN20, the applicant’s serious offending involved a number of instances of stalking and making death threats to the police. His ex-partner had never been a direct victim of the offending behaviour resulting in visa cancellation.
In DKN20, nothing in the ex-partner’s letter was capable of being understood as identifying herself as a victim of the applicant’s offending. '
In other words, it was the police, not the ex-partner, who were the direct victim of DKN20’s serious offending behaviour. This can be distinguished from this case where the victim of the Applicant’s serious offending behaviour was undoubtedly his ex-partner. Distinct from the circumstances that were in issue in DKN20 it was uncontentious that the Applicant’s offending as triggered the automatic revocation of his visa had directly concerned his ex-partner.
What is the takeaway?
In situations where the victim is the direct victim of the serious offending behaviour (the offence resulting in the visa cancellation), the impact of the revocation on the victim needs to be considered regardless of whether that impact is positive or negative.
How Can Agape Henry Crux Help You.
Your non-revocation decision may be affected by the same error. If you want to find out more about your eligibility or need advice on your Australian migration matter, please do not hesitate to contact us. You can book a Migration Planning Session with one of our immigration lawyers to seek professional advice by calling 02-7200 2700 or email us to book in a time at info@ahclawyers.com.
We speak fluent English, Korean, Mandarin, Cantonese, Indonesian, Burmese and Malay. If these aren’t your language, we can also help you arrange an interpreter.
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