Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288

FEDERAL COURT OF AUSTRALIA

Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288 Citation: Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288

Parties: THOMAS SCOTT GBOJUEH v MINISTER FOR IMMIGRATION AND CITIZENSHIP

File number: VID 910 of 2011

Judge: BROMBERG J

Date of judgment: 23 March 2012

Catchwords: ADMINISTRATIVE LAW – Migration Act 1958 (Cth), s 501A(2) – Decision by Minister to set aside decision of AAT and cancel visa of non-citizen – whether jurisdictional error – whether Minister misconstrued the operation of s 501A(2) and pre-judged his discretion – whether in determining the "national interest" and the exercise of his discretion, Minister failed to take into account as relevant matters: the actual criminal conduct of the non-citizen, the findings made relating to his convictions and his participation in rehabilitation – whether relevant considerations to be taken into account arise by implication – whether Minister's reliance on erroneous or misleading information presented in Departmental Issues Paper affected the exercise of the Minister's power – whether denial of procedural fairness – whether sufficient notice given to non-citizen that Minister would consider prejudicial evidence rejected by AAT – whether decision made pursuant to inflexible rule or policy – whether any proper basis for refusing relief – breach of procedural fairness found – decision of Minister quashed.

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 28(1), 30, 32, 33(1)(c) and 34J Migration Act 1958 (Cth) ss 4, 425, 476A, 500, 501, 501A(2), 501A(4) and 501A(5)

Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 Mandafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220 Tewao v Minister for Immigration and Citizenship [2011] FCA 1515 Maurangi v The Honourable Chris Bowen MP, Minister for Immigration and Citizenship [2012] FCA 15 Minister for Immigration v Jia Legeng (2001) 205 CLR 507 Re Paterson; Ex parte Taylor (2001) 207 CLR 391 Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 Roberts v Minister for Immigration and Multicultural Affairs [2004] FCA 739 Minister for Immigration, Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229 Le v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 51 SZBEL and Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 Re Refugee Review Tribunal and Another; ex parte Aala (2000) 176 ALR 219 Kioa v West (1985) 159 CLR 550 Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 47 Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 660 Plaintiff M61/2010E v Commonwealth (2010) 85 ALJR 133 Dunghutti Elders Council (Aboriginal Corporation RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations [2011] 195 FCR 318 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Applicant NAFF of 2002 v MIMA (2004) 221 CLR 1 Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission and Anor [2007] 157 FCR 260