FUD18 v Minister for Home Affairs

FUD18 applied to the Federal Court for declarations and writs of prohibition and mandamus in respect of a visa decision by the Minister for Home Affairs. The applicant argued that the Minister could not lawfully infer from an Interpol red notice that the applicant would present a risk to the Australian community or a segment of it, and that the Minister could not have regard to information outside of the Interpol red notice under s 501(6)(h) of the Migration Act 1958 (Cth). The Minister argued that the statutory framework allowed for the Minister to have regard to the Interpol regime and to infer from the Interpol red notice that the applicant would present a risk to the Australian community.

The court was required to determine whether the Minister could lawfully infer from an Interpol red notice that the applicant would present a risk to the Australian community or a segment of it, and whether the Minister could have regard to information outside of the Interpol red notice under s 501(6)(h). The court examined the statutory provisions of the Migration Act and previous case law, including Minister for Immigration and Multicultural Affairs v Godley. The court found that the Minister is required to make a positive finding as to whether a placitum in s 501(6) applies to the applicant, and that if the Minister is unable to reach a positive decision, then the applicant has passed the character test. The court also found that the statutory framework allows for the Minister to have regard to the Interpol regime when making a determination under s 501(6)(h).

The court dismissed the application and found that the Minister was entitled to infer from the Interpol red notice that the applicant would present a risk to the Australian community or a segment of it, and that the Minister was entitled to have regard to information outside of the Interpol red notice under s 501(6)(h). The court ordered that the application be dismissed and that the applicant pay the respondent’s costs, unless either party applied for a different order as to costs. The court also ordered that the judgment not be published beyond the parties until further order, and that the parties have until 4:00pm on 7 February 2020 to advise the Court of any orders for redaction sought.