CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855

Federal Court of Australia

CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855 File number: NSD 860 of 2020

Judgment of: GRIFFITHS J

Date of judgment: 23 December 2020

Catchwords: MIGRATION – judicial review of a decision by the Acting Minister under s 501A(2) of the Migration Act 1958 (Cth) (Act) to set aside a decision of the Administrative Appeals Tribunal and refuse the applicant's application for a Safe Haven Enterprise (Class XE) visa – acceptance by the Acting Minister that refusal of the visa meant that the applicant would be removed to his country of origin in breach of Australia's international non-refoulement obligations and at risk of being killed – significance of the structure of s 501A(2) of the Act – significance of separate pre-conditions to the exercise of the power, including a separate pre-condition concerning the Acting Minister's satisfaction that refusal of a visa is in the "national interest" – whether the Acting Minister erred in the particular circumstances of the case by failing to consider the implications of Australia acting in breach of its international non-refoulement obligations in his assessment of the "national interest" under s 501A(2)(e) of the Act – Acting Minister fell into jurisdictional error by assessing the question of "national interest" on an erroneously narrow basis, which reflects unreasonableness and/or an incorrect understanding of the law – Acting Minister distorted his decision-making process by deferring his consideration of the implications of Australia breaching its international non-refoulement obligations to a later stage of the decision- making process relating to his residual discretion – Acting Minister's decision set aside ADMINISTRATIVE LAW – consideration of the nature and scope of judicial review of subjective jurisdictional facts with respect to illogical, irrational or unreasonable reasoning and the need to have a correct understanding of the law