Hernandez v Minister for Home Affairs [2020] FCA 415

FEDERAL COURT OF AUSTRALIA

Hernandez v Minister for Home Affairs [2020] FCA 415 File number: SAD 211 of 2018

Judge: CHARLESWORTH J

Date of judgment: 31 March 2020

Catchwords: MIGRATION – mandatory cancellation of visa on character grounds –– non-citizen making representations to Minister for Home Affairs as to why cancellation decision should be revoked – non-citizen claiming to fear harm of kidnap for ransom and murder if returned to El Salvador – whether Minister failed to consider non-citizen's claims – whether Minister failed to determine whether the non-citizen was a person to whom non-refoulement obligations were owed – whether failure to consider constituted jurisdictional error

Legislation: Migration Act 1958 (Cth) ss 5, 5M, 14, 36, 45, 47, 65, 189, 196, 197C, 198, 199, 200, 474, 499, 501, 501CA, 501E Migration Regulations 1994 (Cth) cl 866.225; Schs 2, 4

Cases cited: DOB18 v Minister for Home Affairs [2019] FCAFC 63 Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Ibrahim v Minister for Home Affairs [2019] FCAFC 89 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151 Viane v Minister for Immigration and Border Protection (2018) 263 FCR 56