Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

In the case of Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Applicant, a citizen of Cambodia, sought judicial review of the Minister’s decision to cancel his visa and subsequently not to revoke that cancellation. The Applicant had previously held a bridging visa and had committed various criminal offences as a minor, including being sentenced to detention in a Youth Justice Centre for 18 months. The Minister exercised his powers under section 501(3) of the Migration Act 1958 (Cth) to cancel the Applicant’s visa on the basis that he did not pass the character test, specifically having been sentenced to a term of imprisonment of 12 months or more.

The central legal issues before the court were whether the Minister was required to consider certain factors when exercising his discretionary power under section 501(3) of the Migration Act, including the legal consequences of selecting to exercise the cancellation power under section 501(3) instead of section 501(2), the non-applicability of a ministerial direction, and the national interest implications of potentially breaching Australia’s non-refoulement obligations. The Applicant also argued that the Minister exercised his discretion under section 501(3) in error by not considering these factors.

The court held that the Minister was under no obligation to consider the legal consequences of selecting to exercise the cancellation power under section 501(3) as opposed to section 501(2). The court also found that the Minister was not required to consider the non-applicability of a ministerial direction when exercising his power under section 501(3). Furthermore, the court determined that the Minister was not obliged to consider the national interest implications in the circumstances, including the potential breach of Australia’s non-refoulement obligations. The court concluded that there was no error in the exercise of the discretion under section 501(3).

1. The application for an extension of time to bring proceedings is dismissed with costs.