Roach v Minister for Immigration and Border Protection [2016] FCA 750

FEDERAL COURT OF AUSTRALIA

Roach v Minister for Immigration and Border Protection [2016] FCA 750 File number: NSD 664 of 2015

Judge: PERRY J

Date of judgment: 24 June 2016

Catchwords: MIGRATION - application for review of Minister's personal decisions to refuse applicant's visa on character grounds without notice under s 501(3) of the Migration Act 1958 (Cth) and not to revoke refusal decision under s 501C(4) after receiving representations – where Minister found applicant failed character test under s 501(6)(b) as he was suspected of being a member of a group suspected of criminal conduct – where Minister relied on information protected against disclosure under s 503A - where no opportunity to be heard on exercise of discretion if Minister chose to refuse visa application on character grounds under s 501(3) rather than s 501(1) ("no discretion consequences") MIGRATION - whether Minister failed to take into account mandatory relevant consideration of risk of harm to Australian community posed by the applicant in the exercise of discretion under s 501(3) – whether authorities on relevance of risk of harm under s 501(1) and (2) distinguishable – whether Minister failed to take into account the legal consequences of a decision to refuse the visa under s 501(3) – whether failure to have regard to "no discretion consequences" is a jurisdictional error - whether Minister failed to give primary consideration to best interests of applicant's children - whether Minister misconstrued "member of a group" in s 501(6)(b) – whether applicant is not a "member of a group" unless he has sympathy with, support for, or involvement in the group's suspected criminal conduct – decision in Minister for Immigration v Haneef (2007) 163 FCR 414 distinguished - whether Minister proceeded on erroneous footing that it was open for the applicant to satisfy him that he passed the character test given the extent and relevance of information protected under s 503A – construction of "involved in criminal conduct" in s 501(6)(b) – whether adverse inferences can be drawn from Minister's failure to disclose information protected by s 503A - whether Minister erred in forming a state of satisfaction as to national interest – application for judicial review allowed and Minister's decisions quashed CONSTITUTIONAL LAW – where not appropriate to consider constitutional validity of provisions when unnecessary to do justice and determine the rights of the parties