Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653

Federal Court of Australia

Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653 File numbers: VID 417 of 2021 VID 458 of 2021

Judgment of: MIDDLETON J

Date of judgment: 6 June 2022

Catchwords: MIGRATION – application for extension of time in relation to judicial review in original jurisdiction in relation to Minister's cancellation decision under s 501(3) of the Migration Act – where Minister exercised cancellation power under s 501(3) instead of s 501(2) – held: Minister under no obligation to consider the legal consequences of selecting to exercise cancellation power under s 501(3) as opposed to s 501(2) – where Minister did not consider deprivation of predictability and constraint of a ministerial direction by exercising power under s 501(3) – held: Minister under no obligation to consider non-applicability of ministerial direction by exercising power under s 501(3) – where applicant determined not to have passed character test on the grounds of having been "sentenced to a term of imprisonment for 12 months or more" under s 501(7)(c) on basis of detention in youth justice centre while a minor – consideration of detention ordered under Children, Youth and Families Act 2005 (Vic) – held: applicant's sentence of detention within the meaning of "imprisonment" under s 501 of the Migration Act – where Minister did not consider national interest implications of Australia potentially breaching its non-refoulement obligations to the applicant – consideration of Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195 and ENT19 v Minister for Home Affairs [2021] FCAFC 217 – held: Minister under no obligation to consider national interest implications in the circumstances – where Minister alleged to have exercised discretion under s 501(3) in relation to non-refoulement obligations owed to the applicant in error – held: no error in exercise of discretion under s 501(3) – application dismissed MIGRATION – application for judicial review in original jurisdiction in relation to Minister's non-revocation decision under s 501C(4) of the Migration Act – where applicant determined to not pass character test on the ground of being "sentenced to term of imprisonment for 12 months or more" under s 501(7)(c) on basis of detention in youth justice centre while a minor – consideration of detention ordered under Children, Youth and Families Act 2005 (Vic) – held: applicant's sentence of detention within the meaning of "imprisonment" under s 501 of the Migration Act – application dismissed