Green v Minister for Immigration and Citizenship [2008] FCA 125

FEDERAL COURT OF AUSTRALIA

Green v Minister for Immigration and Citizenship [2008] FCA 125 ADMINISTRATIVE LAW – applicant's visa cancelled pursuant to s 501(2) of the Migration Act 1958 (Cth) – whether discretion to cancel exercised in compliance with Minister's direction issued under s 499(1) – failure to consider relevant considerations – mitigating circumstances not properly considered. ADMINISTRATIVE LAW – procedural fairness – whether Tribunal obliged to inform applicant of adverse credibility finding – whether Tribunal obliged to call witnesses. MIGRATION LAW – Minister issued direction pursuant to s 499(1) of the Migration Act 1958 (Cth) – discretion to cancel visa pursuant to s 501(2) must be exercised in compliance with Minister's direction – interpretation of Minister's direction – "discretion" referred to in Minister's direction is the discretion to cancel visa – "mitigating factors" relates to applicant's conduct considered in totality. WORDS AND PHRASES – "discretion" – "mitigating factors".

Migration Act 1958 (Cth) ss 476A, 499, 501 Migration Reform Act 1994 (Cth)

Green v Minister for Immigration and Citizenship [2007] AATA 1410 set aside Australian Capital Territory v Alphaone Pty Ltd (1994) 49 FCR 576 cited Jones v Dunkel (1959) 101 CLR 298 considered Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 cited RUSSELL GREEN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ADMINISTRATIVE APPEALS TRIBUNAL NSD 1395 OF 2007

TAMBERLIN J

20 FEBRUARY 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1395 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT WALKER

BETWEEN: RUSSELL GREEN

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent