FRH18 v Minister for Home Affairs [2018] FCA 1769

FEDERAL COURT OF AUSTRALIA

FRH18 v Minister for Home Affairs [2018] FCA 1769 File number: NSD 1990 of 2018

Judge: RARES J

Date of judgment: 16 November 2018

Catchwords: MIGRATION – review of Minister's decision – where Minister cancelled visa under s 501A(2) of the Migration Act 1958 (Cth) – where Australia had non-refoulement obligations in respect of applicant – where applicant failed the character test – whether Minister gave proper, genuine and realistic consideration to whether it was in national interest to cancel visa because of possibility that applicant might reoffend despite the provisions of s 197C – whether Minister could consider non-refoulement obligations after cancelling visa as an "alternative management option" – whether Minister understood legal consequences of his decision STATUTORY INTERPRETATION – Minister's power to cancel visa if satisfied cancellation in national interest – Migration Act 1958 (Cth) s 501A(2) – non-compellable powers of the Minister to grant visa under ss 48B and 195A or make residence determination under s 197AB if satisfied in public interest – factors to which decision-maker must have regard in deciding to cancel visa where effect is that person in respect of whom Australia has non-refoulement obligations will be subject to removal as soon as reasonably practicable under s 198 without regard to those obligations by force of s 197C – where s 197C requires disregard of any non-refoulement obligations – whether Minister could defer consideration of non-refoulement until after revoking visa

Legislation: Criminal Code Act 1995 (Cth) Ch 2 Migration Act 1958 (Cth) ss 48B, 195A, 197AB, 197C, 198, 417, 501, 501A, 501F, 501G Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) Migration Legislation Amendment (Immigration Detainees) Act 2001 (Cth)