Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78

Federal Court of Australia

Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78 Appeal from: Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1794

File number: QUD 8 of 2021

Judgment of: LOGAN, PERRY AND BEACH JJ

Date of judgment: 10 May 2021

Catchwords: MIGRATION – visas – visa cancellation – character test – revocation of cancellation – where delegate of Minister had revoked previous visa cancellation – subsequent offending conduct – where visa again cancelled by delegate of Minister – where delegate refusal to revoke cancellation – whether delegate and Tribunal on review in place of delegate bound by s 474(1)(a) of Migration Act 1958 (Cth) to treat earlier decision to revoke cancellation as final and conclusive to the exclusion of a power to cancel or refuse to revoke cancellation Held: powers to cancel and refuse to revoke cancellation enlivened by circumstance of new offending conduct – s 471(1)(a) not relevant – Tribunal obliged by s 43(1) of Administrative Appeals Tribunal Act 1975 (Cth) to review new refusal to revoke decision by reference to material currently before it

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 43 Migration Act 1958 (Cth) ss 474, 499, 501

Cases cited: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1794 Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 Jebb v Repatriation Commission (1988) 80 ALR 329 Pitcher v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 999 Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 Shi v Migration Agents Registration Authority (2008) 235 CLR 286