Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396

Federal Court of Australia

Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396 File number: VID 645 of 2021

Judgment of: BEACH J

Date of judgment: 14 April 2022

Catchwords: MIGRATION – judicial review – decision of Minister under s 501CA(4) of the Migration Act 1958 (Cth) – refusal to revoke decision to cancel visa – personal decision of Minister – taking into account Direction 90 – substantial criminal record – "expectations of the Australian community" – irrationality or unreasonableness – absence of regard to specific circumstances – application allowed – prerogative writs issued

Legislation: Migration Act 1958 (Cth) ss 501(3A), 501(6)(a), (7)(c), 501CA(4)

Cases cited: FYBR v Minister for Home Affairs (2019) 272 FCR 454

Division: General Division

Registry: Victoria

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 115

Date of hearing: 9 March 2022

Counsel for the Applicant: Mr N M Wood SC and Mr B Overend

Solicitor for the Applicant: Clothier Anderson Immigration Lawyers

Counsel for the Respondent: Mr G Hill SC and Mr V Murano

Solicitor for the Respondent: MinterEllison

ORDERS VID 645 of 2021

BETWEEN: BRIAN ANTHONY KELLY Applicant

AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

order made by: BEACH J DATE OF ORDER: 14 April 2022

THE COURT ORDERS THAT:

1. A writ of certiorari be issued quashing the decision of the respondent under section 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the applicant's class BF transitional (permanent) visa under section 501(3A). 2. A writ of mandamus be issued requiring the respondent to determine the question of such revocation according to law. 3. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.