CCU21 v Minister for Home Affairs [2022] FCA 28

Federal Court of Australia

CCU21 v Minister for Home Affairs [2022] FCA 28 File number(s): NSD 668 of 2021

Judgment of: GRIFFITHS J

Date of judgment: 31 January 2022

Catchwords: MIGRATION – judicial review challenge to Minister's decision to cancel applicant's visa under s 501(3) of the Migration Act 1958 (Cth) (Cancellation Decision) and not to revoke the Cancellation Decision under s 501C(4) (Non-revocation Decision) – where pursuant to s 501(6)(g) the Cancellation Decision relied upon the existence of an Adverse Security Assessment (ASA) by the Australian Security Intelligence Organisation (ASIO) – whether Cancellation Decision invalid because Minister failed to consider nature and seriousness of risk posed by applicant to security – whether Minister acted under dictation – whether Cancellation Decision invalid because of failure to consider non-refoulement obligations in considering national interest under s 501(3)(d) – where Minister considered non-refoulement obligations in considering residual discretion – Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 and ENT19 v Minister for Home Affairs [2021] FCAFC 217 distinguishable – no material error MIGRATION – where ASA revoked by ASIO and Qualified Security Assessment issued (QSA) – where Minister relied upon QSA as evidence of the applicant being not of good character under s 501(6)(c) for the Non-revocation Decision – whether QSA exceeded ASIO's statutory function – whether statements in QSA to applicant's credibility not "related to" security – Cancellation Decision not invalid even if QSA invalid – declaratory relief inutile MIGRATION – whether Minister failed to afford applicant procedural fairness by putting him on notice of consideration of the applicant's people smuggling activities as "criminal conduct" – whether Cancellation Decision legally unreasonable – whether Minister entitled to find that the applicant did not pass the character test on a different ground to that relied upon for the Cancellation Decision in making the Non-revocation Decision under s 501C(4) – Graham v Minister for Immigration and Border Protection [2016] FCA 682; 246 FCR 439 not plainly wrong – held: application dismissed