Federal Court win

On 22 December 2020, we had a win for our client MKBL in the Federal Court of Australia in MKBL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1827.

MKBL was initially from the United Kingdom but migrated to Australia as a child with his family. MKBL never applied for Australian citizenship despite being eligible for around 15 years. While still a young man, MKBL met his partner (an Australian citizen) and had a child (also an Australian citizen). MKBL’s relationship with his partner ended and he lost contact with his child, his mental health declined and he turned to drugs to in a misconceived attempt to escape from reality.

MKBL, whilst in a drug-affected stupor, sent indecent messages to underage girls over Facebook. His messages persisted so much in one case that it constituted grooming. MKBL’s offending was detected by police and he was charged. MKBL was ultimately sentenced to more than 12 months’ imprisonment which resulted in his visa being mandatorily cancelled.

MKBL applied to the Minister for revocation of the cancellation of his visa. The Minister, by his delegate, refused to revoke the cancellation of MKBL’s visa. MKBL then applied to the Administrative Appeals Tribunal for review of that decision.

During the Tribunal hearing, MKBL adduced evidence from a psychologist that he never would have acted on his indecent messages due to the fact that he had no self-esteem and was merely acting out a fantasy rather than concocting a plan to meet with underage girls. The Tribunal rejected this evidence, finding that the grooming offence fundamentally involved an intention to meet with the relevant underage girl. Ultimately, the Tribunal dismissed MKBL’s application and affirmed the Minister’s decision to refuse to revoke the cancellation of MKBL’s visa.

MKBL applied to the Federal Court for judicial review of the Tribunal’s decision. The Federal Court allowed MKBL’s application on the basis that the Tribunal had been incorrect to find that the grooming offence fundamentally involved an intention to meet with the relevant underage girl. Given the psychologist’s evidence on this point, and its importance in assessing the risk of harm to the Australian community, the Federal Court found that this error by the Tribunal was sufficiently serious so as to constitute jurisdictional error, justifying the setting aside of the Tribunal’s decision.

MKBL now has another chance to get his visa back in the Tribunal.