Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897

FEDERAL COURT OF AUSTRALIA

Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897 Citation: Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897

Parties: JOSEPH MAGITI LESIANAWAI v MINISTER FOR IMMIGRATION AND CITIZENSHIP

File number: NSD 907 of 2012

Judge: KATZMANN J

Date of judgment: 22 August 2012

Catchwords: MIGRATION – judicial review of Minister's decision to cancel visa under s 501A(2) of the Migration Act 1958 (Cth) – discretion to cancel visa where visa holder does not pass "character test" – whether Minister's decision affected by jurisdictional error – where legitimate expectation that the best interests of children would be treated as a primary consideration – whether Minister failed to treat the best interests of the applicant's children as a primary consideration – where Minister's reasons state that visa cancellation "may" not be in the best interests of the children – whether Minister failed to make a finding about what the children's best interests required – whether denial of procedural fairness

Legislation: Constitution s 75(v) Migration Act 1958 (Cth) ss 476A, 499, 501, 501A(2) Convention on the Rights of the Child [1991] ATS 4 Federal Court Rules 2011 rr 4.12, 4.19

Cases cited: Bahonko v Sterjov (2007) 163 FCR 318 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Cooper v Federal Commissioner of Taxation (2004) 139 FCR 205 Minister of Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Nweke v Minister for Immigration and Citizenship (2012) 126 ALD 501 Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 Tewao v Minister for Immigration and Citizenship (2012) 126 ALD 18 Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133