Perera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 403

Federal Court of Australia

Perera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 403 File number: WAD 279 of 2020

Judgment of: O'BRYAN J

Date of judgment: 22 April 2021

Catchwords: MIGRATION – application for judicial review of decision of the Minister refusing to revoke mandatory cancellation of visa under s 501CA(4) of the Migration Act 1958 (Cth) – where applicant did not pass character test due to having a "substantial criminal record" under s 501(6)(a) Migration Act 1958 (Cth) – whether there was another reason why mandatory cancellation should be revoked – whether Minister erred by failing to consider a substantial claim raised in representations made on behalf of the applicant, that Cuba would be likely to deny re-entry to the applicant which would render the applicant effectively stateless – whether Minister erred by failing to consider Australia's non-refoulement obligations owed to the Applicant and the real possibility that, as a consequence of cancelling his visa, the Applicant would be held in detention indefinitely – meaning of Minister's statement that he was unable to make a finding about the risk of harm – application upheld

Legislation: Acts Interpretation Act 1901 (Cth) s 25D Migration Act 1958 (Cth) ss 197C, 198, 476A(1)(c), 476A(2), 499, 501(3A), 501(6)(a), 501(7)(c), 501C, 501CA(1), 501CA(4), 501G

Cases cited: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 Minister for Home Affairs v Omar (2019) 272 FCR 589 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55