Mr Calvey is a New Zealand citizen with a significant (serving a concurrent sentence of 339 months) criminal history. He is also the father to three minor (Australian citizen) children by two different mothers. His visa was cancelled in May 2020.
Under Direction 79 (the predecessor to Direction 90), the “best interests of the children” is one of the primary factors (to be given greater weight) in exercising the discretion as to whether or not to revoke the cancellation decision. At the AAT hearing, the mothers gave evidence of the views of their respective children (ie they wanted a relationship with their father). There was no direct evidence from the children and no expert evidence.
Despite that, the Tribunal found (at [232] that: “In circumstances where the Tribunal does not have the views of the Applicant’s biological children before it, the Tribunal is unable to afford sub-paragraph (f) of paragraph 13.2(4) of the Direction any measure of weight.”
The Court expressed some reservations about whether this was an error despite the Minister’s concession that it was. The issue then became one of materiality. Existence or non-existence of a realistic possibility that the decision could have been different is a question of fact which the applicant in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof. In this case the applicant did not establish that there is a realistic possibility the decision would have been different if his children were able to give their views. Overall, considering that the applicant’s children are quite young, it is reasonable for their mother to speak on their behalf of their wishes to maintain a relationship with their father.
If you want to read the whole case: Calvey v Minister for Immigration [2022] FCAFC 104.
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