BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs

The appeal, BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs, was heard in the Federal Court of Australia. The appellant, BWS22, sought judicial review of a decision to cancel his Global Special Humanitarian visa. The appellant was granted the visa in 2010, but it was subsequently cancelled by a delegate under section 116(1AA) of the Migration Act 1958 (Cth). The Administrative Appeals Tribunal affirmed the delegate's decision. The appellant's primary contentions on appeal were that the primary judge erred in interpreting the term "identity" in section 116(1AA) of the Act, that procedural fairness was not afforded to his half-brother, and that the Tribunal failed to consider the mandatory legal consequences of its decision.

The court considered the appellant's argument that the Tribunal misconstrued the meaning of the term "identity" by not acknowledging that DNA evidence could be probative of identity. The court held that the Tribunal correctly identified the limitations of the DNA evidence, finding that it was probative of familial connections and only partially relevant to the appellant's identity. The court rejected the argument that the Tribunal erred in not considering procedural fairness for the appellant's half-brother, as the primary judge correctly found that section 140 of the Act did not require procedural fairness to be afforded in these circumstances. The court also dismissed the argument that the Tribunal failed to consider the mandatory legal consequences of its decision, as the Tribunal did not err in its approach to the DNA evidence or in its consideration of the appellant's identity.

The appeal was dismissed, and the appellant was ordered to pay the Minister's costs of the appeal, to be taxed if not agreed.