FBW18 v Minister for Home Affairs

The case of FBW18 v Minister for Home Affairs involved the applicant, a Sudanese national, who had resided in Australia on a humanitarian visa since 2009. Following a conviction for aggravated sexual offences, his visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth). The Minister for Home Affairs declined to revoke the cancellation, prompting the applicant to seek an extension of time to file a judicial review application against the Minister's decision. The applicant argued that the Minister erred in not considering whether non-refoulement obligations were owed to him, in not properly evaluating the strength of his ties to Australia, and in not adequately considering the impediments he would face if removed.

The court examined whether the Minister's decision involved a jurisdictional error, particularly in deferring the consideration of non-refoulement obligations until a potential future application for a protection visa. The court referenced previous cases to understand the legal landscape, ultimately aligning with the majority reasoning in DOB18. The court found that the Minister's consideration of the applicant's claims, while brief, did not amount to a jurisdictional error. The Minister acknowledged the applicant's risk of harm if returned to Sudan and recognized the potential engagement of non-refoulement obligations, albeit deferring a detailed consideration to a future application for a protection visa.

The Federal Court granted the applicant an extension of time to file his amended judicial review application but dismissed the application itself. The court held that the Minister did not commit a jurisdictional error by considering the applicant's claims in the context of a potential protection visa application. The court ordered that time be extended for the filing of the amended application, dismissed the judicial review application, and required the applicant to pay the respondent's costs.