Lewer v Minister for Home Affairs [2023] FCAFC 121

Federal Court of Australia

Lewer v Minister for Home Affairs [2023] FCAFC 121 Appeal from: Lewer v Minister for Home Affairs [2022] FCA 456

File number: VID 286 of 2022

Judgment of: NICHOLAS, O'CALLAGHAN AND MCELWAINE JJ

Date of judgment: 4 August 2023

Catchwords: MIGRATION – appeal from a decision of the primary judge refusing the appellant's application for review of a visa cancellation pursuant to s 476A of the Migration Act 1958 (Cth) (Act) – where appellant's visa was cancelled pursuant to s 501(3)(b) of the Act on the basis that the appellant does not pass the character test – where Minister decided cancellation of the appellant's visa was in the national interest – where Minister relied upon report of Victoria Police – whether open to the Minister to find appellant's involvement in serious criminal conduct in the absence of proof of conviction – whether primary judge erred in failing to find the Minister's decision was affected by jurisdictional error – whether primary judge erred by failing to find that the Minister had made a material legal error in finding that the appellant had been convicted of firearms offences in 1997 and 2016 – no error found – appeal dismissed

Legislation: Migration Act 1958 (Cth) ss 476A, 501

Cases cited: Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 288 FCR 565; [2021] FCAC 195 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 Australian Postal Corporation v D'Rozario (2014) 222 FCR 303; [2014] FCAFC 89 BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420; [2020] FCAFC 94 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 CVN17 v Minister for Immigration and Border Protection [2019] FCA 13; (2019) 163 ALD 101 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754 FTZK v Minister for Immigration and Citizenship (2013) 211 FCR 158; [2013] FCAFC 44 Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774; (2004) 83 ALD 411 HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121; [2019] FCAFC 202 Lewer v Minister for Home Affairs [2022] FCA 456 Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326; [2002] FCAFC 220 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; [2002] HCA 32 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81; [2017] FCAFC 200 Navoto v Minister for Home Affairs [2019] FCAFC 135 Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379; [2012] HCA 36 Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28; [2014] HCA 22 QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394 Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307 Re Patterson; Ex parte Taylor (2001) 207 CLR 391; [2001] HCA 51 SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 Soliman v University of Technology, Sydney (2012) 207 FCR 277; [2012] FCAFC 146 SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142 Waterford v Commonwealth (1987) 163 CLR 54 Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272; [2008] FCAFC 108