Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033

FEDERAL COURT OF AUSTRALIA

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 Review of: BBFD v Minister for Home Affairs [2019] AATA 3907

File numbers: NSD 1141 of 2019 NSD 1664 of 2019

Judge: RARES J

Date of judgment: 25 November 2019

Catchwords: ADMINISTRATIVE LAW – applications for judicial review of decision of Administrative Appeals Tribunal –where Tribunal set aside decision of delegate that refused to grant a protection visa under s 501(1) of the Migration Act 1958 (Cth) – where delegate required applicant to satisfy him of only one ground in s 501(6) as to whether she passed character test – where delegate not satisfied that applicant passed the character test under s 501(1) only because of risk that she would engage in criminal conduct in Australia under s 501(6)(d)(i) – whether scope of review in Tribunal under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) limited it to considering solely whether applicant passed the character test on ground that delegate decided adversely under s 501(6)(d)(i) for purpose of deciding whether to refuse to grant a visa under s 501(1) – where Tribunal had no power to extend review to consider other criteria in s 501(6) not considered or raised by delegate – where Tribunal remitted the protection visa application to Minister for reconsideration under s 65 of the Migration Act 1958 (Cth) with direction that applicant not be refused visa under s 501(1) MIGRATION – whether Tribunal committed jurisdictional error in overlooking or misunderstanding the applicant's admissions of contravening ss 197A and 235(3) of the Migration Act 1958 (Cth) – where no error of law in simply making a wrong finding of fact – where Tribunal not required to characterise applicant's past conduct as criminal in order to assess her risk in the future that she would engage in criminal conduct under s 501(6)(d)(i) ADMINISTRATIVE LAW – applications for declaratory relief and writ of mandamus – where Minister's decision under s 501A(2) of the Migration Act 1958 (Cth) only impediment to immediate grant of protection visa under s 65(1)(a) – where applicant's prolonged and continuing immigration detention pending determination of her application created sufficient urgency to justify imposing time limit for Minister to make decision under s 65(1)(a) – declaration that possible use of s 501A(2) does not prevent a grant of protection visa under s 65(1)(a)