XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619

Federal Court of Australia

XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619 Appeal from: Application for judicial review of the Administrative Appeals Tribunal decision delivered on 11 September 2019 by Senior Member M Griffin QC

File number(s): NSD 1570 of 2019

Judgment of: BURLEY J

Date of judgment: 8 June 2021

Catchwords: MIGRATION – judicial review of Administrative Appeals Tribunal ('Tribunal') decision under s 501CA(4) of the Migration Act 1958 (Cth) ('Act') to not revoke delegate's visa cancellation decision under s 501(3A) – whether reasoning in Minister for Immigration and Border Protection v Makasa [2021] HCA 1 applies to power under s 501(3A) – where decision made under s 501(3A) affected by jurisdictional error – whether validity of s 501(3A) decision affects Tribunal's ability to conduct review under s 501CA(4) – where Tribunal misapplied Direction 79 in considering the expectations of the Australian community – whether error material – application dismissed

Legislation: Acts Interpretation Act 1901 (Cth) Administrative Appeals Tribunal Act 1975 (Cth) Migration Act 1958 (Cth) Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) Australia, House of Representatives, Migration Amendment (Character and General Visa Cancellation) Bill 2014

Cases cited: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; 276 FCR 75 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 37; 24 ALR 307 Corporation of the City of Enfield v Development and Assessment Commission [2000] HCA 5; 199 CLR 135 Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 FYBR v Minister for Home Affairs [2019] FCAFC 185; 319 ALR 601 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 Minister for Home Affairs v Brown [2020] FCAFC 21; 275 FCR 188 Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; 268 FCR 379 Minister for Immigration and Border Protection v Makasa [2021] HCA 1 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; 247 FCR 500 Plaintiff S174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 VKTT v Minister for Home Affairs [2019] FCA 1018 Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545