Kuster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1462

Federal Court of Australia

Kuster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1462 File number: NSD 457 of 2021

Judgment of: HALLEY J

Date of judgment: 23 November 2021

Catchwords: MIGRATION – cancellation of Class BF Transitional (Permanent Visa) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Act) – Minister's personal decision not to revoke cancellation pursuant to s 501CA(4) of the Act – where protection and expectations of Australian community outweighed best interests of children, applicant's ties to the community and possibility of indefinite detention – whether Minister considered an irrelevant consideration – whether Minister failed to consider a relevant consideration – whether applicant was afforded procedural fairness – whether decision was illogical or irrational – no jurisdictional error found – no practical injustice to the applicant – application dismissed PRACTICE AND PROCEDURE – application for extension of time – where application filed two days outside time limit – where delay immaterial – sufficient prospects of success – application granted

Legislation: Migration Act 1958 (Cth) ss 476A, 501, 501CA

Cases cited: Ali v Minister for Home Affairs (2020) 278 FCR 627; [2020] FCAFC 109 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 Applicants M1015/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309 EHF17 v Minister for Immigration and Border Protection and Another (2019) 272 FCR 409; [2019] FCA 1681 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 186 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Minister for Immigration and Border Protection v WZARH and Another (2015) 256 CLR 326; [2015] HCA 40 Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Citizenship v SZQKB (2012) 133 ALD 495; [2012] FCA 1189 MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 Sunshine Coast Broadcasters Pty Ltd and Others v Australian Communications and Media Authority (2012) 209 FCR 518; [2012] FCA 1205 SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 Zyambo v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2021] FCA 545