CKL21 v Minister for Home Affairs [2022] FCAFC 70

FEDERAL COURT OF AUSTRALIA

CKL21 v Minister for Home Affairs [2022] FCAFC 70 Appeal from: CKL21 v Minister for Home Affairs [2021] FCA 1019

File number: VID 537 of 2021

Judgment of: MOSHINskY, O'BRYAN AND CHEESEMAN JJ

Date of judgment: 5 May 2022

Catchwords: MIGRATION – decision of the Minister not to revoke mandatory cancellation of visa under s 501CA(4) of the Migration Act 1958 (Cth) – whether decision of the Minister affected by jurisdictional error – where Minister made a finding that "Australia has a low tolerance of criminal conduct for people… who have been participating in, and contributing to, the community only for a short period" – whether Minister erred in making this finding without a probative basis – where Minister made findings about the appellant's future risk of reoffending – whether in so finding the Minister erred by making irrational findings of fact, or made findings that were legally unreasonable – whether the Minister misunderstood the law applicable to the detention and/or removal of the appellant from Australia – appeal allowed

Legislation: Australian Passports Act 2005 (Cth) ss 9(1A), 57 Migration Act 1958 (Cth) ss 189, 195A, 197C, 198, 501(3A), 501CA(3A), 501CA(4) Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) Australian Passports Determination 2015 s 7(1)

Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 AFD21 v Minister for Home Affairs [2021] FCAFC 167; 393 ALR 398 Afu v Minister for Home Affairs [2018] FCA 1311 Al-Kateb v Godwin (2004) 219 CLR 562 Allesch v Maunz (2000) 203 CLR 172 Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; 383 ALR 194 Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595 AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451 BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153 Bradley v The Queen [2017] VSCA 69 Brown v Minister for Immigration and Border Protection (2015) 235 FCR 88 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Commonwealth of Australia v AJL20 [2021] HCA 21; 95 ALJR 567 CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 397 ALR 1 DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; 388 ALR 389 DZT18 v Minister for Home Affairs (2019) 166 ALD 478 FYBR v Minister for Home Affairs (2019) 272 FCR 454 Kemp v Minister for Immigration and Border Protection [2018] FCA 1106 Logan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 419 Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 Minister for Immigration and Border Protection v Mohammed (2019) 269 FCR 70 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 Ogbonna v Minister for Immigration and Border Protection (2018) 261 FCR 385 Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 133 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 Re Patterson; Ex parte Taylor (2001) 207 CLR 391 RP v The Queen (2016) 259 CLR 641 Taualii v Minister for Home Affairs [2020] FCAFC 102 Tran v Minister for Immigration and Border Protection [2019] FCAFC 126 YKSB v Minister for Home Affairs [2020] FCAFC 224 YKSB v Minister for Home Affairs [2020] FCA 476