MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35

Federal Court of Australia

MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 Appeal from: MNLR v Minister for Home Affairs [2020] FCA 948

File number: NSD 848 of 2020

Judgment of: PERRAM, WIGNEY AND SC DERRINGTON JJ

Date of judgment: 16 March 2021

Catchwords: MIGRATION – appeal from decision of Federal Court of Australia dismissing judicial review application –where Administrative Appeals Tribunal affirmed decision of Minister's delegate not to revoke the mandatory cancellation of the appellant's visa under s 501(3A) of the Migration Act 1958 (Cth) – whether primary judge erred in failing to find Tribunal failed to consider prospect of indefinite detention arising from international non-refoulement obligations owed to the appellant – whether primary judge erred in failing to find jurisdictional error of Tribunal in making positive finding of fact not open on the evidence – whether primary judge erred in failing to find jurisdictional error of Tribunal in failing to consider Australia's reputation if in breach of international non-refoulement obligations – appeal dismissed with costs PRACTICE AND PROCEDURE – where leave sought to advance ground of appeal not raised before primary judge – leave refused

Legislation: Migration Act 1958 (Cth) ss 5, 13, 14, 36(2), 189, 189(1), 195A, 196, 196(1), 197C, 198, 198(1), 198(2B), 198(6), 199, 499, 499(1), 499(2), 499(2A), 501, 501(1), 501(2), 501(3A), 501(3A)(a)-(b), 501(6)(a), 501(7)(c), 501A, 501A(2), 501CA(1), 501CA(3), 501CA(4), 501CA(4)(a), 501CA(4)(b)(ii) Migration and Maritime Powers Leglisation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) Migration Regulations 1994 (Cth) Sch 2 r 866.225 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) Art 33(1) Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)