Federal Court of Australia
Federal Court of Australia
Minister for Home Affairs v BRO18 [2024] FCAFC 27 Appeal from: BRO18 v Minister for Home Affairs [2023] FCA 1193
File number: NSD 1266 of 2023
Judgment of: BROMWICH, DERRINGTON and SNADEN JJ
Date of judgment: 8 March 2024
Catchwords: MIGRATION – appeal from decision of single judge of the Federal Court of Australia – where delegate of Minister for Home Affairs cancelled respondent's visa on character grounds under s 501(2) of the Migration Act 1958 (Cth) – where Minister cannot re-exercise discretion on the same factual basis in circumstances where the Minister had earlier decided not to cancel the visa due to Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 270 CLR 430 – whether Makasa allows decision-makers to consider the same facts considered in an earlier exercise of the discretion in concluding that a person did not pass the character test – whether the error was material – scope of counterfactual analysis in assessing materiality – held: Minister's error was not material; appeal allowed
Legislation: Acts Interpretation Act 1901 (Cth) s 33(1) Migration Act 1958 (Cth) s 501(2), (6)(a), (c), (7)(d)
Cases cited: BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170 Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113 CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 In re Davis (1947) 75 CLR 409 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 270 CLR 430 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 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 Jia Legeng [2001] HCA 17; 205 CLR 507 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 Nguyen v Minister for Home Affairs [2019] FCAFC 128; 270 FCR 555
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