AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs

The applicant, a national of Sierra Leone, challenged the Minister for Immigration, Citizenship and Multicultural Affairs’ decision to refuse his application for a Class XA Subclass 866 (Protection) visa. The applicant, who had been in Australia since 2009, had his previous visa cancelled due to criminal convictions. After a series of decisions and reviews, the Tribunal ultimately decided in favour of the applicant, finding that he satisfied the character test and should not be refused a protection visa. However, the Minister exercised his power under s 501A(2) of the Migration Act 1958 (Cth) to substitute his own decision for the Tribunal’s.

The central legal issue was whether the Minister’s decision to substitute his own decision for the Tribunal’s was unreasonable, particularly in light of the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37. The applicant argued that the Minister’s decision was legally unreasonable because it failed to consider the potential legal consequences of his decision, specifically the risk of the applicant being unlawfully detained. The Minister maintained that his decision was reasonable and that the applicant’s subsequent release from detention did not impact the validity of his decision.

The court examined whether the Minister’s error in failing to consider the potential legal consequences amounted to a jurisdictional error. It concluded that the error did not go to the jurisdiction of the decision-maker because it did not concern the terms or limits of the power being exercised or the criteria for its exercise. The court found that the Minister’s reasoning was not so flawed as to render his decision legally unreasonable. The court also noted that the applicant's release from detention, while relevant to the overall context, did not affect the legality of the Minister’s decision at the time it was made.

Accordingly, the application was dismissed, and the applicant was ordered to pay the respondent’s costs.