Fahad Salahuddin v Minister for Immigration and Border Protection

[2014] HCASL 107

FAHAD SALAHUDDIN

v

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR

[2014] HCASL 107
S28/2014

1. The applicant is a citizen of Pakistan. On 16 October 2012, a delegate of the first respondent cancelled the applicant's Resident (Return) (Class BB) visa because he failed to pass the "character test" under s 501 of the Migration Act 1958 (Cth) ("the Act"), in that he has a "substantial criminal history" within the meaning of s 501(7)(c) of the Act.

2. On 7 January 2013, the Administrative Appeals Tribunal ("the Tribunal") affirmed the decision of the delegate.  The Tribunal held that the considerations favouring continuation of the applicant's visa were outweighed by the high risk that the applicant would reoffend.

3. On 28 June 2013, the Federal Court of Australia (Jacobson J) dismissed an application for review of the Tribunal's decision. The applicant had contended that the Tribunal had fallen into jurisdictional error in failing expressly to consider cl 9.1.2(1)(a) of Direction No 55, promulgated by the first respondent under s 499 of the Act. That clause required the Tribunal to consider the "nature of the harm to individuals or the Australian community should the [applicant] engage in further criminal or other serious conduct". Jacobson J held that, on a fair reading of the decision, the Tribunal had considered that clause.

4. On 28 November 2013, the Full Court of the Federal Court of Australia (Flick, Katzmann and Wigney JJ) dismissed an appeal against the decision of Jacobson J.  The Full Court agreed that the Tribunal considered, albeit implicitly, the matters referred to in cl 9.1.2(1)(a).

5. The applicant requires an extension of time in which to file his application for special leave to this Court.  The application raises no question of principle which would warrant consideration by this Court.  Moreover, the application does not enjoy sufficient prospects of success to warrant the grant of special leave to appeal.  Special leave should be refused.  There would therefore be no utility in granting the applicant an extension of time.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
19 June 2014 P.A. Keane