CCU21 v Minister for Home Affairs [2023] FCAFC 87

Federal Court of Australia

CCU21 v Minister for Home Affairs [2023] FCAFC 87 Appeal from: CCU21 v Minister for Home Affairs [2022] FCA 28

File number: NSD 72 of 2022

Judgment of: PERRAM, Halley and Goodman JJ

Date of judgment: 31 May 2023

Catchwords: MIGRATION – appeal from decision of Federal Court of Australia dismissing judicial review application concerning two decisions of the Minister – where first Minister cancelled Appellant's visa under s 501(3) of the Migration Act 1958 (Cth) ('Cancellation Decision') – whether Minister could rationally conclude that cancellation of the Appellant's visa was in national interest without considering reputational consequences for Australia of breaching non-refoulement obligations under international law – whether Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 288 FCR 565 and ENT19 v Minister for Home Affairs [2021] FCAFC 217; 289 FCR 100 are distinguishable – whether there was material before Minister suggesting non-refoulement obligations enlivened. MIGRATION – where Appellant subject of adverse security assessment by ASIO – whether first Minister failed to consider risk of harm posed by Appellant to Australian community – whether irrational or unreasonable for Minister to find Appellant posed risk to community on basis of adverse security assessment. MIGRATION – where ASIO subsequently revoked adverse security assessment and issued qualified security assessment – where second Minister decided not to revoke Cancellation Decision under s 501C(4) ('Non-Revocation Decision') on basis that Appellant was not of good character on basis of Appellant's past involvement in people smuggling activities – whether Minister considered Appellant's involvement in people smuggling activities as criminal conduct – whether Minister failed to afford Appellant procedural fairness by informing Appellant she would only consider his 'general conduct' – whether Minister's findings about criminality of involvement in people smuggling irrational or unreasonable – whether Minister's finding that Appellant's actions posed significant risk to people being smuggled was irrational. ADMINISTRATIVE LAW – materiality – where majority in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 held applicant for judicial review bears onus of proving realistic possibility that a different decision could have been made – where state of authorities unclear after Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737.