Nkani v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1410

Federal Court of Australia

Nkani v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1410 Review of: Nkani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1239

File number(s): VID 621 of 2022

Judgment of: O'BRYAN J

Date of judgment: 16 November 2023

Catchwords: MIGRATION – application for extension of time to review a decision of Administrative Appeals Tribunal (Tribunal) – the Tribunal affirmed a decision of the Minister's delegate not to revoke the cancellation of the applicant's visa – whether the Tribunal lacked jurisdiction to review the non-revocation decision because it was not based on a valid or legally effective cancellation decision – whether the Tribunal failed to take into account a mandatory consideration, being the extent of impediments the applicant would face if removed from Australia, taking into account the applicant's drug and/or alcohol use as a health issue – whether the Tribunal failed to consider a clearly articulated and significant representation made by the applicant, namely that the applicant had been a victim of sexual assault – application for extension of time granted – application for judicial review dismissed

Legislation: Acts Interpretation Act 1901 (Cth), s 33(1) Administrative Appeals Tribunal Act 1975 (Cth), s 43(2B) Migration Act 1958 (Cth), ss 430, 476A, 477A, 499, 500(1)(ba), 501, 501CA Crimes Act 1900 (NSW), s 114(1)(d)

Cases cited: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 El Khoueiry v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 136 ETA067 v Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228 Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 173 Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 137 Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 200 Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 178 ALD 573 LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039 and by Full Courts in Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 134 Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116 Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304 Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171 South Australia v O'Shea (1987) 163 CLR 378 SXNC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 390 SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 256