BMX15 v Minister for Immigration and Border Protection [2016] FCA 1183

FEDERAL COURT OF AUSTRALIA

BMX15 v Minister for Immigration and Border Protection [2016] FCA 1183 File number: VID 494 of 2015

Judge: BROMBERG J

Date of judgment: 5 October 2016

Catchwords: MIGRATION – Migration Act 1958 (Cth), ss 501(3A), 501CA – where a visa holder failed the character test on the basis of having a substantial criminal record - where the Minister mandatorily cancelled the applicant's visa under s 501(3A) – where the applicant requested the Minister revoke the original mandatory cancellation under s 501CA – where the Minister decided not to revoke the original cancellation – whether the Minister's decision was legally unreasonable for having failed to consider the risk to the Australian community posed by the applicant – the Minister considered the risk posed free of legal unreasonableness – whether the Minister erred, fettering her discretion through imposing an impossible standard: that of being unable to "rule out the possibility of further offending" by the applicant – no basis for concluding that a different result could not have been reached if the applicant's offending had been less serious, even if further offending could not have been ruled out – whether the Minister erred by failing to take into account the applicant's custodial status upon release from prison – the Minister did consider the applicant's custodial status – whether the Minister erred by failing to take into account the prospect that the applicant would be subject to indefinite detention upon the cancellation of his visa – the Minister was not required to consider the prospect of the applicant's indefinite detention as the applicant remained entitled to apply for a protection visa – appeal dismissed

Legislation: Migration Act 1958 (Cth), ss 5H, 36, 189, 196, 198, 501, 501CA, 501E