Taurino v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 119

FEDERAL COURT OF AUSTRALIA

Taurino v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 119

CONSTITUTIONAL LAW – Immigration – Applicant's permanent visa cancelled under s 501 of the Migration Act on the basis that he did not pass the character test – Whether applicant was within the Constitutional reach of s 501 – Applicant born in Papua New Guinea of an Australian citizen father – Whether applicant was an 'alien' within the meaning of s 51(xix) of the Constitution.

IMMIGRATION – Validity of Minister's decision – Obligation of Minister to treat as a primary consideration the best interests of the applicant's children – Failure of Minister to determine what the best interests of the children indicated should be decided with respect to the visa cancellation – Failure to consider the effect of the applicant's deportation on the children if they remained in Australia. Singh v Commonwealth of Australia [2004] HCA 43 applied Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 26 AAR 227; 150 ALR 607 considered and applied Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; 107 FCR 133 considered and applied Migration Act 1958 (Cth) ss 501(2) and (6), 501G(1) Constitution of the Commonwealth of Australia s 51(xix) SEBASTIAN JAMES TAURINO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 880 of 2004 WILCOX J 25 FEBRUARY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 880 of 2004

BETWEEN: SEBASTIAN JAMES TAURINO

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE OF ORDER: 25 FEBRUARY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the former Minister for Immigration and Multicultural Affairs, dated 1 November 2002, to cancel the applicant's Transitional (Permanent) Visa under s 501(2) of the Migration Act 1958 (Cth) be quashed. 2. The respondent and every person who is an 'officer', within the meaning of the said Act, be restrained from deporting or removing the applicant from Australia in reliance upon the said decision. 3. The applicant be released from further compliance with the conditions set out in order 2 made on 16 September 2004. 4. The respondent pay the applicant's costs of this proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.