AYY21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

This case concerned an application for judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel the applicant's Temporary Protection Visa (TPV). The applicant had been granted a TPV in 2016 and had previously travelled overseas on three occasions with the Department's approval. In July 2020, the applicant sought approval to travel to Iran due to family illness. The applicant claimed to have been informed by a departmental contact that this travel request was approved and subsequently departed Australia on 9 August 2020. However, the Department's records indicated that the travel request had not been finalised at the time of departure, and the applicant had not received written approval to enter another country, thereby breaching Condition 8570 of his TPV. Consequently, on 14 August 2020, the applicant's TPV was referred for cancellation under section 128 of the *Migration Act 1958* (Cth).

The primary legal issue before the court was whether the delegate of the Minister had erred in law in cancelling the applicant's TPV. This involved determining whether the delegate had correctly applied section 128 of the *Migration Act 1958* and whether the delegate's assessment of the various factors considered in the exercise of the residual discretion to cancel the visa was reasonable and legally sound. Specifically, the court had to consider whether the delegate's finding that the applicant had breached Condition 8570 was justified, and if so, whether the weight given to this breach and other factors in the cancellation decision was appropriate.

Manousaridis J found that the delegate had correctly identified that the applicant had breached Condition 8570 by departing Australia without written approval for entry into another country. The delegate's reasoning for this finding was based on departmental records and the clear terms of the condition. Furthermore, the delegate considered a range of factors in exercising the residual discretion, including the purpose of the applicant's travel, his compliance with other visa conditions, the potential hardship to the applicant and his family, the circumstances of the breach, his past behaviour, and consequential and legal implications. While the delegate acknowledged factors weighing against cancellation, such as the applicant's refugee status and time spent in Australia, the delegate gave significant weight in favour of cancellation due to the breach of Condition 8570 and the circumstances surrounding it. The court concluded that the delegate's decision was open to the delegate on the evidence before him and that no error of law had been demonstrated.

The application for judicial review was dismissed.