Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141

FEDERAL COURT OF AUSTRALIA

Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 File number: VID 283 of 2017

Judge: TRACEY J

Date of judgment: 28 September 2017

Catchwords: MIGRATION – application for judicial review of a decision of the Assistant Minister for Immigration and Border Protection to refuse to revoke a decision to cancel the applicant's Class BF transitional (permanent) visa under s 501CA(4) of the Migration Act 1958 (Cth) – where the visa had previously been cancelled by a delegate of the Minister pursuant to s 501(3A) for a failure to pass the character test – whether the Assistant Minister erred by failing to accord the applicant procedural fairness by not identifying an issue that was critical to the decision – whether failure to accord procedural fairness by departing from a representation about the decision-making process – whether failure to take into account a relevant consideration being government policy said to be constituted by ministerial Direction 65 – whether failure to take into account a relevant consideration being a submission made to the Assistant Minister about non-revocation constituting a disproportionate penalty where a criminal sentence of imprisonment had already been imposed

Legislation: Federal Circuit Court Act 1999 (Cth) s 39(1) Migration Act 1958 (Cth) ss 499, 499(2A), 501, 501(3A), 501(3A)(a)(i), 501(3A)(b), 501(6)(a), 501(7)(c), 501CA(4)

Cases cited: Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68 Minister for Immigration and Border Protection v SZSSJ (2016) 333 ALR 653; [2016] HCA 29 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189; [1994] FCA 225 Muin v Refugee Review Tribunal (2002) 190 ALR 601; [2002] HCA 30 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SZSSC v Minister for Immigration (2014) 317 ALR 365; [2014] FCA 863 Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673