Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93 Appeal from: Tesic v Minister for Immigration and Border Protection [2016] FCA 1465

File number: QUD 941 of 2016

Judges: REEVES, ROBERTSON AND RANGIAH JJ

Date of judgment: 7 June 2017

Catchwords: ADMINISTRATIVE LAW – judicial review under s 39B of the Judiciary Act 1903 (Cth) of the Minister's decision not to revoke, pursuant to s 501CA(4) of the Migration Act 1958 (Cth), cancellation of the respondent's visa – whether the primary judge erred in finding jurisdictional error on the part of the Minister – where the Minister stated he was mindful of the "principle" that persons who commit serious crimes "should expect to forfeit the privilege of remaining in Australia" – whether no evidence that the respondent continued to traffick drugs following his cessation of their use – whether the respondent's "correct criminal record" a mandatory relevant consideration – whether the primary judge erred in admitting into evidence affidavits, which were not before the Minister, denying that the respondent continued to traffick drugs following his cessation of their use – whether possibility that "correct criminal record" may have affected the Minister's decision – whether denial of procedural fairness where respondent was told that either a delegate or the Minister would make the decision but not later told it was to be the Minister MIGRATION – appeal – orders of primary judge allowing an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) of the Minister's decision not to revoke, pursuant to s 501CA(4) of the Migration Act 1958 (Cth), cancellation of the respondent's visa – whether the primary judge erred in finding jurisdictional error on the part of the Minister – where the Minister stated he was mindful of the "principle" that persons who commit serious crimes "should expect to forfeit the privilege of remaining in Australia" – whether no evidence that the respondent continued to traffick drugs following his cessation of their use – whether the respondent's "correct criminal record" a mandatory relevant consideration – whether the primary judge erred in admitting into evidence affidavits which were not before the Minister denying that the respondent continued to traffick drugs following his cessation of their use – whether possibility that "correct criminal record" may have affected the Minister's decision– whether denial of procedural fairness where the respondent was told that either a delegate or the Minister would make the decision but not later told it was to be the Minister