Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 Appeal from: BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288

File number: NSD 2071 of 2017

Judges: ROBERTSON, MOSHINSKY AND BROMWICH JJ

Date of judgment: 4 May 2018

Catchwords: MIGRATION – visa cancellation pursuant to s 501(3A) of the Migration Act 1958 (Cth) – decision not to revoke cancellation decision pursuant to s 501CA(4) – Resolution of Status (Class CD) Subclass 851 visa – where respondent, in his representations in support of revocation of the cancellation decision, claimed that he would face "prosecution" or even be killed because of his ethnicity as a member of a particular minority tribe, and because of his political activities, if he were returned to his country of citizenship – where the Minister stated, in his reasons for decision, that it was unnecessary to determine whether non-refoulement obligations were owed to the respondent – where the primary judge, applying BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456, held that the Minister's decision was affected by jurisdictional error – whether the primary judge erred in concluding that BCR16 was not distinguishable – whether decision of the Full Court in BCR16 is plainly wrong – grounds of appeal relating to BCR16 rejected MIGRATION – Resolution of Status (Class CD) Subclass 851 visa (RoS visa) – visa cancellation on character grounds – decision of the Minister not to revoke cancellation decision pursuant to s 501CA(4) of the Migration Act 1958 (Cth) – where primary judge held that the Minister had failed to take into account a mandatory relevant consideration, namely the respondent's status as a refugee – whether primary judge erred in so concluding – consideration of the criteria for grant of the RoS visa – whether the loss of certain benefits and entitlements was a mandatory relevant consideration in deciding whether or not to revoke the cancellation decision – ground of appeal upheld As both grounds of appeal had to succeed, appeal dismissed Legislation: Migration Act 1958 (Cth), ss 4, 36, 65, 189, 196, 198, 499, 501, 501CA, 501E Social Security Act 1991 (Cth), s 7 Migration Regulations 1994 (Cth), reg 1127AA