CCU21 v Minister for Home Affairs

This appeal concerns two decisions of the Minister for Home Affairs under the Migration Act 1958 (Cth) to cancel the Appellant's visa and to refuse to revoke that cancellation. The Appellant, a non-citizen, sought judicial review of these decisions in the Federal Court of Australia. The Federal Court dismissed the appeal and the Appellant now appeals to this Court. The appeal raises three questions: (1) whether the first Minister's decision to cancel the Appellant's visa was irrational or unreasonable because he did not consider the reputational consequences for Australia of breaching its non-refoulement obligations under international law, (2) whether the first Minister's decision was irrational or unreasonable because he did not consider the risk posed by the Appellant to the Australian community, and (3) whether the second Minister's decision not to revoke the cancellation decision was made in breach of the rules of procedural fairness or in a way which was unreasonable or irrational.
The appeal raises significant issues about the scope of judicial review of decisions of the Minister for Home Affairs under the Migration Act. The first issue concerns the scope of the judicial review of the first Minister's decision to cancel the Appellant's visa. The Appellant submitted that the first Minister's failure to consider the reputational consequences for Australia of breaching its non-refoulement obligations under international law meant that his decision was irrational or unreasonable. However, the Court found that the first Minister had considered the risk posed by the Appellant and that he had carefully weighed this factor against the seriousness of the risk the Appellant posed to Australia's national security. The Court found that the first Minister's decision was not irrational or unreasonable.
The second issue concerns the scope of judicial review of the first Minister's decision to cancel the Appellant's visa. The Appellant submitted that the first Minister's failure to consider the risk posed by the Appellant to the Australian community meant that his decision was irrational or unreasonable. However, the Court found that the first Minister had before him an adverse security assessment from the Director-General of Security which assessed the Appellant to be a direct or indirect threat to security and recommended that his visa be cancelled. The Court found that the first Minister's decision was not irrational or unreasonable.
The third issue concerns the scope of judicial review of the second Minister's decision not to revoke the cancellation decision. The Appellant submitted that the second Minister's failure to afford him procedural fairness meant that his decision was unreasonable or irrational. However, the Court found that the second Minister had considered the Appellant's past involvement in people smuggling activities and had concluded that he was not of good character. The Court found that the second Minister's decision was not unreasonable or irrational.
The appeal was allowed and the orders made by the Federal Court of Australia on 31 January 2022 were set aside. In lieu thereof, the Court issued a writ of certiorari absolute in the first instance quashing the decision of the first Minister made on 9 September 2021 and a writ of mandamus absolute in the first instance directing the first Minister to determine the Appellant's revocation application according to law within 28 days. The first Minister was ordered to pay the Appellant's costs as taxed or agreed and the Respondent was ordered to pay the Appellant's costs of the appeal as taxed or agreed.