Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69

FEDERAL COURT OF AUSTRALIA

Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69 Appeal from: Shrestha v Minister for Immigration and Anor [2016] FCCA 828 Ghimire v Minister for Immigration and Anor [2016] FCCA 1440 Acharya v Minister for Immigration and Anor [2016] FCCA 1240

File numbers: VID 757 of 2016 VID 758 of 2016 VID 820 of 2016

Judges: BROMBERG, BROMWICH AND CHARLESWORTH JJ

Date of judgment: 27 April 2017

Catchwords: ADMINISTRATIVE LAW – jurisdictional error affecting administrative decision – no possibility of different outcome had error not been made – discretionary refusal of remedies sought on application for judicial review – relief denied on appeal MIGRATION – Tribunal decision to affirm cancellation of higher education student visa – meaning of "circumstance" in s 116(1)(a) of the Migration Act 1958 (Cth) – Tribunal asked itself the wrong question in determining whether grounds to cancel the visa existed – Federal Circuit Court erred in failing to identify jurisdictional error – no possibility of different outcome had Tribunal error not been made – appeal dismissed

Legislation: Migration Act 1958 (Cth) ss 65, 116, 119 Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) Item 22 of Sch 2 Migration Regulations 1994 (Cth), cll 573.111, 573.223, 456.221(2) of Sch 2, Sch 8

Cases cited: Craig v South Australia (1995) 184 CLR 163 Esber v The Commonwealth (1992) 174 CLR 430 Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 House v Defence Force Retirement and Death Benefits Authority (2011) 193 FCR 112 Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration and Multicultural Affairs v Zhang (1999) 84 FCR 258 NAUV v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 124; (2004) 82 ALD 784 R v Army Council; Ex parte Ravenscroft [1917] 2 KB 504 Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 SAAP v Minister for Immigration, Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 Stead v State Government Insurance Commission (1986) 161 CLR 141 Zhang v Minister for Immigration and Multicultural Affairs [1997] FCA 1177 Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Law Book Co, 2017)