Parker v Minister for Immigration and Border Protection [2016] FCAFC 185

FEDERAL COURT OF AUSTRALIA

Parker v Minister for Immigration and Border Protection [2016] FCAFC 185 Appeal from: Parker v Minister for Immigration and Border Protection [2016] FCA 938

File number: NSD 1468 of 2016

Judges: GRIFFITHS, MORTIMER and PERRY JJ

Date of judgment: 20 December 2016

Catchwords: MIGRATION – appellant's visa cancelled under s 501(2) of the Migration Act 1958 (Cth) – character grounds relating to substantial criminal record as defined in s 501(7) – where Minister's delegate previously exercised discretion not to cancel visa and whether this is an exercise of power under s 501(2) – whether subsequent conviction is proper basis for fresh exercise of power under s 501(2) with conviction later annulled – whether Minister's decision was unreasonable as the subsequent event should be treated as a nullity in accordance with s 10 of the Crimes (Appeal and Review) Act 2001 (NSW) STATUTORY INTERPRETATION – whether the phrase "may cancel" in s 501(2) implies a singular action and whether it displaces the presumption in s 33(1) of the Acts Interpretation Act 1901 (Cth) PRACTICE AND PROCEDURE: – leave to raise new ground not advanced below. Held: – appeal dismissed.

Legislation: Acts Interpretation Act 1901 (Cth), s 33, 33(1) Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 4(2), 5, 10, 10(1) Government Railways Act 1912 (NSW), s 80 Migration Act 1958 (Cth), ss 195A, 496, 501(2), 501(6)(a), 501(7)(c), 501(10), 501A, 501A(2), 501A(3), 501G(1) Weapons Prohibition Act 1998 (NSW), ss 7