DPN22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. Pursuant to s 477A(2) of the Migration Act 1958 (Cth), the time for filing an application for judicial review of the second respondent's decision dated 16 September 2020 be extended to 11 November 2022.
2. A writ of certiorari be issued quashing the decision of the second respondent dated 16 September 2020.
3. A writ of mandamus directed to the second respondent be issued requiring it to determine the application for review of the decision of a delegate of the first respondent dated 25 June 2020 according to law.
4. The first respondent is to pay the applicant's costs fixed in the amount of $7,111.00. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCEVOY J: 1 In this proceeding the applicant seeks an extension of time pursuant to s 477A(2) of the Migration Act 1958 (Cth) in order to make an application for judicial review pursuant to s 476A of the Act of a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the Minister not to revoke the mandatory cancellation of the applicant's visa pursuant to s 501CA(4)(b)(ii) of the Act. The parties have promoted, by consent, orders granting the application for an extension of time, that a writ of certiorari be issued quashing the decision of the Tribunal dated 16 September 2020, and that a writ of mandamus directed to the Tribunal be issued requiring it to review the delegate's decision according to law. 2 As Colvin J explained in VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [3]-[5], even where the proper contradictor to an application for judicial review consents to the grant of relief, the Court must be satisfied that there is an error. There is a public interest that requires the Court to specify the error and its satisfaction that an error has occurred which justifies the proposed relief being granted within the public law jurisdiction of the Court: Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323 at 327-328 [12] (French J). 3 One of the applicant's complaints in this proceeding is that the Tribunal's decision was irrational or legally unreasonable due to its finding that the applicant's ties to the Australian community did not weigh for or against revocation of her visa. 4 The Minister has conceded that the Tribunal's decision dated 16 September 2020 is affected by jurisdictional error on the basis that it was irrational or legally unreasonable in circumstances where it did not identify a rational or intelligible basis for not giving any weight to the applicant's representations as to her family ties in favour of revocation of the mandatory cancellation of the applicant's visa. 5 Thus the parties have adopted the position that it is appropriate for the Court to make orders for the extension of time to file an application for judicial review, quashing the decision of the Tribunal, and requiring the review to be determined according to law. 6 The Court is satisfied, for the reasons identified by the parties and set out above, that there has been jurisdictional error on the part of the Tribunal. The application for an extension of time should be granted, the Tribunal's decision should be quashed, and the Tribunal should be required to determine the application afresh. 7 It follows that there will be orders substantially in the terms proposed by the parties, including that the first respondent will pay the applicant's costs agreed in the sum of $7,111.00. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.