Vargas v Minister for Home Affairs [2021] FCAFC 162

Federal Court of Australia

Vargas v Minister for Home Affairs [2021] FCAFC 162 Appeal from: Vargas v Minister for Home Affairs [2021] FCA 276

File number(s): QUD 122 of 2021

Judgment of: MCKERRACHER, MARKOVIC AND SC DERRINGTON JJ

Date of judgment: 3 September 2021

Catchwords: MIGRATION – appeal from decision of primary judge dismissing application made under s 476A of the Migration Act 1958 (Cth) (the Act) for judicial review of a migration decision – where Minister used his discretion under s 501BA of the Act to set aside a decision of the Administrative Appeals Tribunal (AAT) made under s 501CA of the Act – whether the Minister's refusal to afford the appellant natural justice in the process of, or leading up to, the exercise of his power in s 501BA(2) was unreasonable – whether Federal Court has jurisdiction to review the process leading up to exercise of such power – whether the Minister's disagreement with a comment by the AAT that the appellant is not a 'threat to all women' is a finding that is 'illogical, irrational or unreasonable' – whether the Minister failed to apply any 'active intellectual process' to certain matters affecting his decision – whether Minister failed to take into account materials before the AAT that were mandatory relevant considerations

Legislation: Migration Act 1958 (Cth) ss 5, 189, 474, 476A, 501, 501BA, 501CA Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)

Cases cited: Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; (2020) 276 FCR 75 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) FCR 636 Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 347 ALR 350 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 Ibrahim v Minister for Home Affairs [2019] FCAFC 89; (2019) 270 FCR 12 McHugh v Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 385 ALR 485 Minister for Home Affairs v Brown [2020] FCAFC 21; (2020) 275 FCR 188 Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 Tang v Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs [2013] FCAFC 139; (2013) 217 FCR 55