Was the Tribunal Correct to Affirm the Minister’s Decision In Canceling the Subclass 444
The case of Dr. F (name redacted) discussed whether the Tribunal has erred in the decision making the process of affirming a decision of the delegate for the Minister to cancelling the subclass 444 (Special Category) Visa held by the Applicant, Dr. F (name redacted).
Why Was the Applicant’s Visa Cancelled?
On 16 October 2017, the Delegate cancelled the Visa under s.116(1)(e)(i) of the Act on the basis that the presence of the Applicant in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community and, in particular, women within the Australian community, after the Applicant was charged with multiple counts of sexual intercourse without consent and assault with act of indecency, alleged to have occurred in the course of his practice as a medical practitioner.
Issues With the Tribunal’s Decision
The Appellant argued that there are a number of instances in the Tribunal decision where the Tribunal either erred in stating the familial witnesses’ evidence, or presented evidence as contradictory with the written statements, when parts of the Tribunal’s hearing, a transcript of which is in evidence before me did not show contradictions claimed by the Tribunal, or where post‑hearing statements explained the apparent inconsistencies. There are also instances where the Tribunal decision is internally inconsistent in its recitation of facts or the conduct of the hearing.
The tribunal considered that although the applicant may no longer practice as a general practitioner, this does not mean that he would not in the ordinary course of life come into contact with women in the Australian community where he may take the opportunity to engage in behavior that would constitute an assault. The Tribunal finds that the possibility that the alleged activities occurred in the past indicate that the applicant may be a risk to the health or safety of women by engaging in similar behavior, even though restricted, in the future.
Finding of the Court
The Tribunal did not commit a jurisdictional error by making reference applicant’s gender, age and background, and it was not fair to describe the Tribunal as having approached the matter on the basis of their ethnicity.
Additionally, even though there had seemed to be incorrect statements contained in the Tribunal judgment of what Direction 63 purported to say, in substance, the Tribunal had not made a mistake in reaching the decision, upon weighing the conflicting discretionary considerations and accurately setting out the statutory scheme in ways. When assessing whether a jurisdictional error exists, the court upheld the reasoning in Minister for Immigration and Border Protection v Tran [2015] FCA 546; 232 FCR 540 at [24] per Jagot J; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJMinister for Immigration and Border Protection v Tran [2015] FCA 546; 232 FCR 540 at [24] per Jagot J; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ which require the decision of the Tribunal to be read as a whole, and not with an eye keenly attuned to the perception of error.
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