BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288

FEDERAL COURT OF AUSTRALIA

BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288 File number: NSD 71 of 2017

Judge: GRIFFITHS J

Date of judgment: 7 November 2017

Catchwords: MIGRATION – application for judicial review of a decision made under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke a decision made under s 501(3A) to cancel the applicant's class CD, subclass 851, Resolution of Status (permanent) visa (RoS visa) – whether respondent failed to take into account mandatory relevant considerations, namely the applicant's status as a refugee (in circumstances where the RoS visa was granted on the basis that the applicant held a temporary protection subclass 785 XA visa which had been granted to him because he had been assessed as a refugee), Australia's non-refoulement obligations and the possibility of indefinite detention – whether respondent fell into jurisdictional error by misunderstanding the law and legal consequences of the decision, denying the applicant procedural fairness or constructively failing to carry out the statutory task required by s 501CA(4) – whether majority joint judgment in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 is distinguishable – whether respondent took into account an irrelevant consideration by reference to forfeiture of privilege of remaining in Australia – whether respondent's decision was unreasonable in the legal sense Held: respondent's non-revocation decision set aside because of (a) the respondent's failure to address the legal consequences of the decision, being the continuing loss of the applicant's benefits and entitlements as a refugee and (b) the binding authority of BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; matter remitted to the respondent for reconsideration according to law, with costs