LNMR v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FCA 936

FEDERAL COURT OF AUSTRALIA

LNMR v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 936  

Review of:

LNMR v Minister for Immigration, Citizenship and Multicultural Affairs (Administrative Appeals Tribunal, No. 2023/5591, 17 October 2023)

File number:

WAD 284 of 2023

Judgment of:

FEUTRILL J

Date of judgment:

30 July 2024

Date of publication of reasons:

19 August 2024

Catchwords:

MIGRATION – application for judicial review of the Administrative Appeals Tribunal’s decision refusing to revoke cancellation decision of the delegate of the Minister under s 501CA(4) of the Migration Act 1958 (Cth) – whether there was jurisdictional error – failure to take into account mandatory consideration of s 499 direction

PRACTICE AND PROCEDURE – consent order for issue of constitutional writs - consideration of applicable principles

Legislation:

Migration Act 1958 (Cth) ss 499, 500(1)(ba), 501(3A), 501CA(3), 501CA(4)

Cases cited:

FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19

Irwin v Military Rehabilitation & Compensation Commission [2009] FCAFC 33; 174 FCR 574

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582

Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203

Division:

General Division

Registry:

Western Australia

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

6

Date of hearing:

30 July 2024

Counsel for the Applicant:

The Applicant appeared in person

Counsel for the First Respondent:

Ms G Ellis

Solicitor for the First Respondent:

Sparke Helmore

Counsel for the Second Respondent:

The Second Respondent submits to any order of the Court, save as to the question of costs.

ORDERS

WAD 284 of 2023

BETWEEN:

LNMR

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	FEUTRILL J
DATE OF ORDER:	30 JULY 2024

THE COURT ORDERS THAT:

1.A writ of certiorari issue to quash the decision made by the second respondent dated 17 October 2023 to affirm the decision made by a delegate of the first respondent not to revoke the mandatory cancellation of the applicant’s class BA subclass 200 Refugee and Humanitarian (permanent) visa.

2.A writ of mandamus requiring the second respondent to determine the application made to it for review of the delegate’s decision according to law.

3.The first respondent pay the applicant’s costs, as agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
REVISED FROM TRANSCRIPT

FEUTRILL J:

1. The applicant seeks judicial review of a decision of the second respondent (Administrative Appeals Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to revoke the cancellation of the applicant's visa under s 501CA(4) of the Migration Act 1958 (Cth). The Minister has conceded that the Tribunal failed to consider the nature and duration of the applicant's links to his former partner, Ms Aimee McQuillan, as was required by cl 8.33 and cl 8.34 of Direction No. 99 – Visa refusal and…