Cheryala v Minister for Immigration and Border Protection [2018] FCAFC 43

FEDERAL COURT OF AUSTRALIA

Cheryala v Minister for Immigration and Border Protection [2018] FCAFC 43 Appeal from: Cheryala v Minister for Immigration and Border Protection [2017] FCCA 2261

File number: NSD 1635 of 2017

Judges: BESANKO, FLICK AND MCKERRACHER JJ

Date of judgment: 23 March 2018

Catchwords: MIGRATION – bridging visas – where Appellant charged with offences under the Crimes Act 1900 (NSW) – where Appellant's bridging visa cancelled under reg 2.43(1)(p)(ii) of the Migration Regulations 1994 (Cth) on the basis of the charges – where all charges later withdrawn – where Appellant made a further application for a bridging visa – where application rejected as invalid in accordance with Item 1305(3)(g) of Sch 1 of the Migration Regulations because the applicant had previously held a visa that was cancelled on a ground specified in reg 2.43(1)(p) ADMINISTRATIVE LAW – invalidity of regulation – whether regulation disproportionate to statutory power – whether reg 2.43(1)(p)(ii) or Item 1305(3)(g) of Sch 1 of the Migration Regulations invalid – whether reg 2.43(1)(p)(ii) or Item 1305(3)(g) "disproportionate" to the power conferred by s 504 of the Migration Act 1958 (Cth) – whether reg 2.43(1)(p)(ii) or Item 1305(3)(g) infringe the presumption of innocence or the common law right to liberty of the person

Legislation: Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) s 4A Industrial Relations Act 1988 (Cth) s 299 Migration Act 1958 (Cth) ss 4, 29, 31, 37, 42, 46, 65, 116, 118A, 119, 120, 121, 122, 123, 124, 125, 126, 127, 189, 338, 348, 476, 501, 504 Migration Regulations 1994 (Cth) regs 2.01, 2.07, 2.25, 2.43, Sch 1 Item 1305 Crimes Act 1900 (NSW) ss 86(1)(b), 61I, 61L Local Government Act 1934 (SA) s 667