Minister for Immigration and Border Protection v Le [2016] FCAFC 120

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Le [2016] FCAFC 120 Appeal from: Le v Minister for Immigration and Border Protection [2015] FCA 1473

File number: QUD 87 of 2016

Judges: ALLSOP CJ, GRIFFITHS AND WIGNEY JJ

Date of judgment: 9 September 2016

Catchwords: MIGRATION – appeal from successful judicial review of Minister's decision to cancel visa on character grounds pursuant to s 501(2) of the Migration Act 1958 (Cth) – whether Australia's non-refoulement obligations are a mandatory consideration in considering visa cancellation – notice of contention concerning accuracy of information before the Minister regarding respondent's migration status– Held: primary judge erred in concluding that Australia's non-refoulement obligations were a mandatory consideration under s 501(2) where an application for a protection visa can subsequently be made in Australia – appeal allowed and notice of contention dismissed.

Legislation: Migration Act 1958 (Cth), ss 5, 6, 6(2), 6(3), 6A, 9(1), 11ZF, 31, 35A, 48A, 48B, 48B(6), 82, 82(2), 109, 189, 195A, 195A(4), 196, 197C, 198, 198(6), 501, 501(1), 501(2), 501(6), 501(7), 501E, 501F, 502(2) Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) Migration Reform Act 1992 (Cth) Migration Reform (Transitional Provision) Regulations 1994 (Cth), regs 3, 4 Migration Regulations 1994 (Cth), reg 2.01(b), Schs 1, 2, Item 1128, cls 155.211(2), 155.511 Convention Relating to the Status of Refugees 1951, done at Geneva on 28 July 1951 and entered into in force 22 April 1954, as amended by the Protocol Relating to the Status of Refugees 1967, done at New York on 31 January 1967, Art 33