Hernandez v Minister for Home Affairs

Hernandez v Minister for Home Affairs involved the Minister for Home Affairs' decision not to revoke the cancellation of the applicant's visa on character grounds. The applicant, Mr Hernandez, a non-citizen, had submitted representations to the Minister arguing that his return to El Salvador would result in harm, including potential kidnapping and murder. The applicant claimed that the Minister failed to consider his representations adequately and to determine whether non-refoulement obligations applied to his situation.

The legal issues before the court were whether the Minister failed to consider the applicant's claims, and whether the Minister failed to determine whether the applicant was a person to whom non-refoulement obligations were owed. The court examined whether these failures constituted a jurisdictional error. The applicant argued that the Minister did not properly consider his representations and did not assess whether he was subject to non-refoulement obligations, which could have affected the decision-making process.

The court found that the Minister had indeed failed to consider the applicant's claims properly. The Minister's decision did not address the applicant's specific concerns regarding the dangerous conditions in El Salvador and the potential harm he would face. Additionally, the Minister did not determine whether non-refoulement obligations applied, which was a critical oversight. The court held that these failures amounted to a jurisdictional error, as the Minister did not comply with conditions attending the exercise of power, which could have led to a different decision.

The court allowed the application, quashed the Minister's decision, and compelled the Minister to reconsider the visa cancellation in accordance with the law. The Minister was ordered to pay the applicant's costs, and the time for appeal was extended to 30 June 2020. The parties were granted liberty to apply to vary or revoke the costs order or to extend the appeal period.