Buchwald v Minister for Immigration and Border Protection [2016] FCA 101

FEDERAL COURT OF AUSTRALIA

Buchwald v Minister for Immigration and Border Protection [2016] FCA 101 File number: VID 726 of 2014

Judge: BROMBERG J

Date of judgment: 16 February 2016

Catchwords: MIGRATION – application for review of Minister's decision under s 501 Migration Act to cancel applicant's visa – whether Minister erred by ignoring relevant material or making finding based on no evidence in assessment of seriousness of applicant's offending (ground 1) – whether Minister erred by relying on irrelevant (and ignoring relevant) material or by failing to make decision based on most-current material available in relation to applicant's criminal record (ground 2) – as to ground 1, Minister's finding not constitutive of jurisdictional error – consideration of whether "no evidence" ground of review must relate to jurisdictional fact – as to ground 2, applicant not denied possibility of successful outcome even if jurisdictional error established – consideration of whether document constructively before Minister – discussion of what are "relevant considerations" for s 501 Migration Act – jurisdictional error not established – application dismissed

Legislation: Migration Act 1958 (Cth) ss 501(2), (6), (7)

Cases cited: Australian Postal Corporation v D'Rozario (2014) 222 FCR 303 Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 Buchwald v the Queen [2011] VSCA 445 Buchwald v the Queen [2012] HCASL 181 Gbojueh v Minister for Immigration and Border Protection [2015] FCAFC 43 Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417 Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 SZNBX v Minister for Immigration and Citizenship (2009) 112 ALD 475 SZNKV v Minister for Immigration and Citizenship (2010) 118 ALD 232 SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365 Te Puke v Minister for Immigration and Border Protection (2015) 230 FCR 499 Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 VKAC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 974