Australia, Nov. 12 -- The Federal Court of Australia issued the following judgement on Nov. 7:

1. INTRODUCTION

1 The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) to affirm the decision of a delegate of the Minister to cancel his visa.

2 The applicant is a 30-year-old citizen of the Philippines. He has resided in Australia since 1997 at which time he was three years old. He has held a Class BB Subclass 155 (Five Year Resident Return) visa.

3 On 18 October 2018, the applicant was convicted of wounding - domestic violence offence and two counts of wilful damage - domestic violence offence, for which he was sentenced to 18 months imprisonment. On 27 April 2022, a delegate of the Minister cancelled the applicant's visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (Cancellation Decision). On 4 May 2023, the applicant applied to the Tribunal for a review of the Cancellation Decision. On 26 July 2023, the Tribunal affirmed the Cancellation Decision and, on 10 August 2023, it provided written reasons for the decision (Tribunal's Decision or TD).

4 By an amended originating application filed on 15 December 2023, the applicant seeks orders pursuant to s 476A of the Act that the Tribunal's Decision be quashed, and the matter be remitted to the Tribunal to be determined according to law. The applicant advances the following grounds in support of his application:

1. The Decision is affected by jurisdictional error because its consideration of the applicant's credibility was irrational or legally unreasonable.

Particulars

i. The AAT considered the applicant's credibility at [130]-[136] and concluded at [136] by rejecting the applicant's evidence as unreliable save to the extent that it was expressly or implicitly accepted thereafter.

ii. At [130], the AAT had regard to the fact that the applicant 'lied to Police regarding the wounding incident' in coming to its credibility finding, however, this was never put to the applicant in cross-examination.

iii. The applicant readily accepted in cross-examination that in the wounding incident he caused a serious wound to the victim, he got into a struggle with the victim and had the intention of using knives to scare a third person.

iv. At [131], the AAT had regard to the fact that the applicant 'lied to the Police when he said that he had punched L's car when he had in fact used a sledgehammer on it', however, in cross-examination, this matter was not put to the applicant and he readily accepted in cross-examination he used a sledgehammer to damage L's car.

v. At [132], the AAT had regard to the 'Applicant's past claims, such as that made before Judge Morzone and that made in correspondence to the Department about being a changed person, [which] have not withstood the test of time', however, there is no evidence of such a claim being made by the applicant at all before Judge Morzone (such claims being made by a psychiatrist from whom there was no evidence from the AAT).

vi. At [133], the AAT found that the applicant 'made a similar claim about having learned lesson [sic] from the wounding incident but it was abandoned within minutes of being made', however, a fair reading of the evidence led was that the applicant was simply admitting to wrongdoing on both occasions and realised the nature of his conduct in context over time, rather than seeking to conceal the truth or his state of mind.

*Rest of the document and Footnotes can be viewed at: (https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2024/2024fca1284)

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