Aye v Minister for Immigration and Citizenship [2010] FCAFC 69

FEDERAL COURT OF AUSTRALIA

Aye v Minister for Immigration and Citizenship [2010] FCAFC 69 Citation: Aye v Minister for Immigration and Citizenship [2010] FCAFC 69

Appeal from: Aye v Minister for Immigration and Citizenship [2009] FCA 978

Parties: ZIN MON AYE v MINISTER FOR IMMIGRATION AND CITIZENSHIP, MIGRATION REVIEW TRIBUNAL and MINISTER FOR FOREIGN AFFAIRS

File number: NSD 1031 of 2009

Judges: SPENDER, LANDER AND MCKERRACHER JJ

Date of judgment: 11 June 2010

Catchwords: MIGRATION – appeal from an order of a judge of this Court – application to review a decision of the Minister for Foreign Affairs and the Migration Review Tribunal (the Tribunal) was dismissed – the Tribunal affirmed decision to cancel visa on the ground that the Minister determined the appellant was a person whose presence in Australia is or would be contrary to Australia's foreign policy interests – Minister for Foreign Affairs' decision made under the Migration Regulations 1994(Cth) – decision is a privative or purported privative clause decision and therefore cannot be reviewed under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) – if decision was made pursuant to a prerogative power it still cannot be reviewed under the ADJR Act – whether the decision is justiciable pursuant to s 39B of the Judiciary Act 1903 (Cth) – decision is susceptible to review depending upon the character and nature of the decision and not upon whether the decision was made under a legislative instrument or prerogative – if the matter was remitted to the Minister for Foreign Affairs the Minister would make the same decision