Anderson v Assistant Minister for Immigration and Border Protection [2018] FCA 888

FEDERAL COURT OF AUSTRALIA

Anderson v Assistant Minister for Immigration and Border Protection [2018] FCA 888 File number: QUD 828 of 2016

Judge: REEVES J

Date of judgment: 13 June 2018

Catchwords: MIGRATION – application for review of a migration decision under s 476A of the Migration Act 1958 (Cth) (the Act) – where the Minister made a decision under s 501(2) of the Act to cancel the applicant's absorbed person visa on the basis that he did not pass the character test due to having a substantial criminal record – where the Minister had made an earlier decision under s 501(3A) of the Act purporting to cancel the applicant's transitional (permanent) visa – whether the first cancellation decision had the effect of cancelling the absorbed person visa by operation of s 501F of the Act – whether the applicant held a transitional (permanent) visa in the first place – whether the first cancellation decision was a nullity – whether, in making the second cancellation decision, the applicant was denied procedural fairness – whether there had been a failure to take into account relevant considerations – whether the risk of reoffending was a mandatory relevant consideration – whether any irrelevant considerations were taken into account – whether using words like "privilege" and "expectations of the community" in the statement of reasons gave rise to jurisdictional error – whether Ministerial Directions under the Act were binding – whether the decision was illogical, irrational and unreasonable Held: application dismissed

Legislation: Migration Act 1958 (Cth) Migration Legislation Amendment Act 1994 (Cth)

Cases cited: AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451; [2016] FCAFC 105 Bochenski v Minister for Immigration and Border Protection (2016) 153 ALD 309; [2016] FCA 989 Johnson v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 494; [2004] FCA 137 Maxwell v Minister for Immigration and Border Protection (2016) 249 FCR 275; [2016] FCA 47 Minister for Immigration & Multicultural & Indigenous Affairs v Schwart [2003] FCAFC 229 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 Minister for Immigration and Border Protection v Tesic (2017) 251 FCR 23; [2017] FCAFC 93 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505; [2004] FCAFC 256 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56; [2008] FCAFC 132 Tesic v Minister for Immigration and Border Protection [2016] FCA 1465