Nafady v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1434

Federal Court of Australia

Nafady v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1434 File number: QUD 149 of 2022

Judgment of: LOGAN J

Date of judgment: 30 November 2022

Catchwords: MIGRATION – application for judicial review of a personal decision by Minister not to revoke visa cancellation decision made under s 501(3) of the Migration Act 1958 (Cth) – relationship between reasonable suspicion in s 501(3)(c) and reasonable satisfaction in s 501C(4) of the Migration Act 1958 (Cth) – where applicant initially convicted of sexual offences against five women – where convictions subsequently quashed and retrial returned not guilty verdicts – where Minister undertakes own review of sentencing remarks and reasons for judgment on appeal and subsequent retrial – where Minister not able to rule out the possibility that the applicant had committed serious sexual offences in the past – where Minister finds that there is a risk that applicant will engage in serious sexual offending in the future – where Minister's decision does not expose basis upon which the Minister formed a reasonable satisfaction that the applicant did not pass the character test – application granted

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 33 Migration Act 1958 (Cth) ss 116, 501, 501A, 501C, 501CA

Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Boughey v The Queen (1986) 161 CLR 10 Briginshaw v Briginshaw (1938) 60 CLR 336 Cadbury UK Ltd v Registrar of Trade Marks [2008] FCA 1126 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Coker v Minister for Immigration and Border Protection [2017] FCA 929 De Silva v The Queen (2019) 268 CLR 57 EVX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1079 Fardon v Attorney-General (Qld) (2004) 223 CLR 575 George v Rockett (1990) 170 CLR 104 Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 Hussien v Chong Fook Kam [1970] AC 942 HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121 MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1161 Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 Yasmin v Attorney-General (Cth) (2015) 236 FCR 169