The Federal Court recently ruled that the Administrative Appeals Tribunal failed to observe procedural fairness “by relying on other materials in its decision without giving notice of those materials to the appellant”.

Accordingly the the court allowed the appeal and ordered that the matter be remitted back to the AAT. In the matter a man who was convicted of manslaughter had his visa cancelled by DIBP on character grounds with the AAT subsequently confirming DIBPs decision.

In considering the appeal, the Court rejected an argument by DIBP that it was futile to remit the matter to the AAT because it was likely that the tribunal would arrive at the same decision.

Fijian national Amitesh Jagroop, 32, killed his wife, Nileshni Singh, on the night of her 19th birthday in June 2006 following a heated argument during which he pushed her causing her to fall and hit her head. Jagroop then chose not to call for help, but instead dragged her down an embankment where he left her to die.

Jagroop pleaded guilty to manslaughter in the Supreme Court and was jailed for 10 years but reduced on appeal. He was released on parole in 2011 and his visa was cancelled last year. But he has been fighting for more than 18 months to appeal the decision. This week a full bench of the Federal Court ordered the matter return to the Administrative Appeal Tribunal for rehearing.

In its decision the court stated, “The Minister referred to the futility of remitting the matter to the AAT, but in our opinion this submission should not be accepted.  The elements of the decision of the AAT should not be compartmentalised as though each is a separate and distinct integer with no effect on another.  Nor can it be concluded that a low prospect of re-offending coupled with serious consequences to the community in the event of re-offending means inevitably that the appellant’s visa will be cancelled.  Direction 55, to which we made reference earlier in these reasons, requires an evaluative assessment by the AAT of all the pertinent factors.  The primary considerations are important in that evaluation but are not decisive.  While on the evidence at present the application to set aside the cancellation of the appellant’s visa may face serious obstacles, it is not possible for us to conclude that the AAT acting reasonably could not come to a conclusion favourable to the appellant.”