Le v Minister for Immigration and Border Protection [2015] FCA 1473

FEDERAL COURT OF AUSTRALIA

Le v Minister for Immigration and Border Protection [2015] FCA 1473 Citation: Le v Minister for Immigration and Border Protection [2015] FCA 1473

Parties: TAM THI LE v MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File number(s): QUD 804 of 2015

Judge(s): LOGAN J

Date of judgment: 24 December 2015

Catchwords: MIGRATION – judicial review of personal Ministerial decision – cancellation of permanent residence visa on character grounds under s 501(2) of the Migration Act 1958 (Cth) – applicant originally granted permanent residence on the basis she was a refugee – where Minister found it unnecessary to consider whether Australia had any continuing non-refoulement obligation to applicant - whether applicant's refugee status a relevant consideration Held: Minister required to consider whether visa cancellation would violate non-refoulement obligation or fell within qualification to non-refoulement – that consideration arose from prior determination of applicant's refugee status and was not dependent on the applicant making submissions to the Minister in that regard – decision quashed

Legislation: Migration Act 1958 (Cth) ss 6A, 13, 14, 48A, 189, 197C, 198, 198(6), 476A, 499, 501, 501E, 501(2), 501(6)(a), 501(7) Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

Cases cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 cited Association of British Civilian Internees (Far East Region) v Secretary of State for Defence [2003] QB 1397 cited Attorney-General (NSW) v Quin (1990) 170 CLR 1cited Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 cited Eden v Minister for Immigration and Border Protection [2015] FCA 780 cited M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 146 cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 considered Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 considered Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 cited Minister for Immigration & Multicultural & Indigenous Affairs v Huynh [2004] FCAFC 47 distinguished Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 757 applied Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 applied Plaintiff M70/ 2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 considered R v Secretary of State for the Home Department; Ex parte Sivakumaran [1988] AC 958 cited Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 cited Stretton v Minister for Immigration and Border Protection (No 2) (2015) 231 FCR 36 cited