BFM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 312

FEDERAL COURT OF AUSTRALIA

BFM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 312 File number(s): NSD 755 of 2019

Judgment of: FARRELL J

Date of judgment: 31 March 2021

Catchwords: MIGRATION – application to review and set aside decision of the Minister to exercise his discretion under s 501A(2) of the Migration Act 1958 (Cth) to refuse to grant a Protection (Class XA) visa – where Administrative Appeals Tribunal found Australia owes non-refoulement obligations in respect of the applicant – whether Minister formed his assessment of the national interest under s 501(2)(e) unreasonably and not on a correct understanding of the law – where Minister fell into jurisdictional error by assessing the determination of the national interest on an erroneously narrow basis by failing to consider the impact of breach of international non-refoulement obligations on Australia's national interest arising from a refusal of the applicant's visa – where Minister's reasons provide a "formulaic and perfunctory" consideration of the basis of Australia's non-refoulement obligations and their impact on his decision – Minister's decision set aside

Legislation: Acts Interpretation Act 1901 (Cth) s 25D Evidence Act 1995 (Cth) s 144 Migration Act 1958 (Cth) ss 4, 5, 5H, 5J, 5M, 35A, 36, 37A, 48A, 48B, 91A-91X, 189, 193, 195A, 196, 197C, 198, 476A, 501, 501A, 501E, 501G, 501H Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (No. 135 of 2014) Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) Arts 1A, 1F, 33