Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Nuuamoa [2024] FCAFC 13

FEDERAL COURT OF AUSTRALIA

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Nuuamoa [2024] FCAFC 13 Appeal from: Nuuamoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 587

File number(s): VID 525 of 2023

Judgment of: BROMWICH, WHEELAHAN AND BUTTON JJ

Date of judgment: 21 February 2024

Catchwords: MIGRATION – appeal from a decision of a single judge of the Federal Court of Australia finding the decision of the delegate of the Minister to cancel the respondent's visa was affected by jurisdictional error and invalid – Whether Full Court of the Federal Court of Australia has jurisdiction to hear the matter or whether the single judge's declaration when read with the reasons was in the nature of a writ of habeas corpus: HELD issue of lack of jurisdiction does not arise because no relief in the nature of habeas corpus was sought or granted – notice of objection to competency overruled – Where visa cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) and decision not to revoke cancellation under s 501CA(4) upheld by Administrative Appeals Tribunal – where judicial review application in court below successful upon the basis that the respondent had discharged his onus to prove he was not serving a sentence of full-time imprisonment at the time the visa cancellation decision was made so as to make the mandatory cancellation decision a jurisdictional error – appeal by the Minister on the finding that the onus had been discharged – HELD: the onus was not discharged – the respondent had not been released from serving a sentence of full-time imprisonment at the time the visa cancellation decision was made – appeal allowed with costs except as to the costs of Minister's unsuccessful interlocutory application to adduce fresh evidence