Black v Minister for Immigration and Citizenship [2007] FCA 1249

FEDERAL COURT OF AUSTRALIA

Black v Minister for Immigration and Citizenship [2007] FCA 1249

ADMINISTRATIVE LAW – application for constitutional writs – where applicant's visa cancelled under s 501(2) Migration Act 1958 (Cth) – where Ministerial Direction No 21 made under s 499 Migration Act 1958 (Cth) – where decision to cancel visa made by Minister personally and not by a delegate – where applicant had no children – where Minister gave considerable weight to 'the best interests of the child' – whether Minister misconstrued Direction No 21 – whether Minister bound by Direction No 21 – whether misconstruction of Direction No 21 amounted to jurisdictional error – whether applicant entitled to expect that 'the best interests of the child' would not be considered – whether applicant denied procedural fairness. Held: Minister misconstrued Direction No 21 by taking into consideration the fact that the applicant had no children under the 'best interests of the child' consideration –Minister not bound by Direction No 21 – fact that the applicant had no children could be taken into account within s 501(2) Migration Act 1958 (Cth) – Minister did not fall into jurisdictional error – no representation that applicant's family circumstances would not be taken into consideration – applicant not denied opportunity to put before the Minister relevant factual material or other submissions – applicant not denied procedural fairness – application dismissed. Migration Act 1958 (Cth) s 501 Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 referred to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 referred to Minister for Immigration and Ethnic Affairs v Gray (1994) 50 FCR 189 referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1 referred to IAN BLACK v THE HONOURABLE KEVIN ANDREWS MP, MINISTER FOR IMMIGRATION AND CITIZENSHIP SAD 43 OF 2007