Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195

Federal Court of Australia Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195 Appeal from: CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855

File numbers: NSD 47 of 2021 VID 13 of 2021

Judgment of: ALLSOP CJ, KENNY, BESANKO, KERR AND CHARLESWORTH JJ

Date of judgment: 9 November 2021

Catchwords: MIGRATION — appeal from orders made by Federal Court of Australia granting application for judicial review of decision of Acting Minister — where Administrative Appeals Tribunal made decision setting aside decision of delegate of Minister for Home Affairs to refuse to grant protection visa to respondent — where Acting Minister set aside decision of Tribunal under s 501A(2) of Migration Act 1958 (Cth) — where respondent was person in respect of whom Australia had protection obligations with country of reference being Afghanistan — where consequences of refusal of visa included removal from Australia — where no other country respondent could be removed to such that removal would be to Afghanistan where respondent faced risk of harm in breach of Australia's international non-refoulement obligations — where Acting Minister did not refer to implications of breach of international non-refoulement obligations in consideration of whether refusal of visa in national interest under s 501A(2)(e) — where Acting Minister referred to Australia's international non-refoulement obligations in addressing discretion to refuse visa upon satisfaction of matters in s 501A(2)(c), (d) and (e) — whether Acting Minister deferred active consideration of Australia's international non-refoulement obligations to assessment of discretion — whether Acting Minister erred in not giving active consideration to implications of breach of Australia's international non-refoulement obligations as part of consideration of national interest — appeal dismissed MIGRATION — application for judicial review of decision of Minister for Home Affairs — order that two grounds of application be heard separately from any other questions by a Full Court — where Administrative Appeals Tribunal made decision setting aside decision of delegate of Minister to refuse to grant protection visa to applicant — where Minister set aside decision of Tribunal under s 501A(2) of Migration Act 1958 (Cth) — where applicant was person in respect of whom Australia had protection obligations with country of reference being Afghanistan — where consequences of refusal of visa included removal from Australia — where no other country applicant could be removed to such that removal would be to Afghanistan in breach of Australia's international non-refoulement obligations — where Minister did not refer to implications of breach of international non-refoulement obligations in consideration of whether refusal of visa in national interest under s 501A(2)(e) — where Minister referred to Australia's international non-refoulement obligations in addressing discretion to refuse visa upon satisfaction of matters in s 501A(2)(c), (d) and (e) — whether Minister erred in approaching task on basis that s 501A(2) conferred discretion to refuse visa upon satisfaction of each of matters in s 501A(2)(c), (d) and (e) — whether Minister deferred active consideration of Australia's international non-refoulement obligations to assessment of discretion — whether Minister erred in not considering implications of breach of Australia's international non-refoulement obligations as part of consideration of national interest — jurisdictional error established