Faingataa v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FCA 505

Federal Court of Australia

Faingataa v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FCA 505 Appeal from: Faingataa and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3562

File number: NSD 924 of 2022

Judgment of: KATZMANN J

Date of judgment: 22 May 2023

Catchwords: MIGRATION – application for judicial review – where applicant's visa was cancelled under s 501(3A) Migration Act 1958 (Cth) while he was serving a lengthy term of imprisonment for a serious offence – where applicant did not pass the character test – whether Tribunal committed jurisdictional error in deciding not to revoke the cancellation decision by overlooking applicant's submission concerning the deterrent effect of his parole conditions in its consideration of the risk of him reoffending – whether Tribunal's reliance on assessment of risk in expert reports was legally unreasonable

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 43(2B) Migration Act 1958 (Cth) ss 499, 500(6L), 501(3A), 501(6), 501(7), 501CA(3), 501CA(4) Ministerial Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Cth) paras 5.2, 8, 8.1.1, 8.1.2

Cases cited: C7A/2017 v Minister for Immigration and Border Protection (2020) 276 FCR 147 CKL21 v Minister for Home Affairs [2022] FCAFC 70 Coker v Minister for Immigration and Border Protection [2017] FCA 929; 160 ALD 588 DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 ETA067 v Republic of Nauru [2018] HCA 46; 360 ALR 228; 92 ALJR 1003 Guclukol v Minister for Home Affairs (2020) 279 FCR 611 Minister for Home Affairs v Omar (2019) 272 FCR 589 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 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] HCA 41; 395 ALR 403; 96 ALJR 13 Nguyen v Minister for Home Affairs [2020] FCA 127; 170 ALD 38 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417; 96 ALJR 497 Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; 399 ALR 644; 96 ALJR 464 SZSLM v Minister for Immigration and Border Protection [2015] FCAFC 164 Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 WAD531/2016 v Minister for Immigration and Border Protection [2018] FCAFC 213