Folau v Minister for Immigration and Border Protection [2017] FCAFC 214

FEDERAL COURT OF AUSTRALIA

Folau v Minister for Immigration and Border Protection [2017] FCAFC 214 Appeal from: Folau v Minister for Immigration and Border Protection [2016] FCA 1149

File number: VID 1216 of 2016

Judges: COLLIER, MURPHY AND BURLEY JJ

Date of judgment: 18 December 2017

Catchwords: MIGRATION – appeal from decision of single judge - cancellation of visa on character grounds by the Minister acting personally under s 501(2) of the Migration Act 1958 (Cth) – whether Minister erred in failing to make a specific finding as to the likelihood that the applicant would reoffend – whether the Minister had regard to an irrelevant consideration, namely that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia – whether Minister had regard to an irrelevant consideration, namely the punitive effect of visa cancellation – Minister taken to have admitted that in every visa refusal and cancellation decision he has made from his appointment until 17 March 2016, his draft reasons for decision were prepared by somebody else and he signed them without change - whether the Minister made a personal decision to cancel the applicant's visa when he adopted the draft reasons prepared by the Minister's department, without change – whether the Minister proper, genuine and realistic consideration to the merits of the applicant's case - appeal dismissed

Legislation: Migration Act 1958 (Cth) ss 4(1), 4(2), 4(4), 476A, 501, 501(2), 501(3), 501(6), 501(6)(a), 501(7), 501(7)(c)

Cases cited: BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78 Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 Djalic v Minister for Immigration [2004] FCAFC 151; (2004) 139 FCR 292 Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 Maxwell v Minister for Immigration and Border Protection [2016] FCA 47 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433; [2002] FCAFC 281 Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723 NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 Wozniak v Minister for Immigration and Border Protection [2017] FCA 44