Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2021] FCAFC 48

Federal Court of Australia

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2021] FCAFC 48 Appeal from: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 1354

File number: NSD 1160 of 2020

Judgment of: MCKERRACHER, BURLEY AND O'CALLAGHAN JJ

Date of judgment: 1 April 2021

Catchwords: MIGRATION – refusal by delegate of protection visa on character grounds – where the Administrative Appeals Tribunal set aside the delegate's decision and substituted its own decision granting the respondent a visa – where Tribunal's decision was based on a statutory construction of the Migration Act 1958 (Cth) subsequently held to be erroneous – where the primary judge held that the Tribunal's decision was affected by jurisdictional error but refused to grant relief to the Minister on discretionary grounds – whether the primary judge's discretion miscarried – whether the Minister relevantly acted in "bad faith" by continuing to detain the respondent after the grant of a visa by the Tribunal – whether the Minister relevantly acted in "bad faith" by failing to adequately explain the continued detention of the respondent to the Court MIGRATION – review by the Tribunal of a decision of a delegate of the Minister under s 501 of the Migration Act pursuant to s 500(1)(b) of the Migration Act – where s 501 of the Migration Act provides only for the refusal or cancellation of a visa on character grounds – whether the Tribunal on review is empowered to grant a visa pursuant to s 65 of the Migration Act – consideration of the content and scope of s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ADMINISTRATIVE LAW – nature of administrative decisions – whether a decision-maker commits a jurisdictional error by correctly applying a statutory construction that is subsequently held to be erroneous – where the Tribunal acted on the agreement of the parties without giving any consideration to the exercise of the relevant discretion NATURAL JUSTICE – procedural fairness – where findings of unlawful conduct and criminality are made against the Minister personally – whether the Minister was put on notice and afforded a reasonable opportunity to respond