NHWY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1680

Federal Court of Australia

NHWY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1680 Review of: NHWY v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2022] AATA 2439

File number: QUD 110 of 2022

Judgment of: LOGAN J

Date of judgment: 13 November 2023

Catchwords: MIGRATION – where the applicant applied for the judicial review by the Court, in its original jurisdiction, of a decision of the Administrative Appeals Tribunal (Tribunal) which affirmed a decision by the Minister's delegate not to revoke the cancellation of the appellant's refugee visa on character grounds under s 501(3A) of the Migration Act 1958 (the Act) – where the hearing of the appeal was postponed pending the hearing and determination of the High Court's decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 97 ALJR 488 (Thornton) – where, relying on Thornton, the appellant alleged jurisdictional error by the Minister in taking into account the appellant's juvenile criminal history – whether the Tribunal erroneously considered the appellant's juvenile criminal history and whether the error was material, giving rise to jurisdictional error – where the Court finds the Tribunal was open to the finding in the exercise of merits review – where the Minister concedes that the Tribunal erred in considering the appellant's juvenile criminal history, in breach of s 85ZR of the Crimes Act 1914 (Cth) as construed in Thornton – whether the error was material and the decision of the Tribunal should be quashed – whether the material deprived the appellant of a realistic possibility that a decision-making process could have resulted in a different outcome MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 cited in Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 – where the Court finds that the error was of marginal significance Minister for Immigration v SZMTA (2019) 264 CLR 421 applied – where not every error present in an administrative decision is jurisdictional Hossain v Minister for Immigration and Border Protection (2018) 256 CLR 123 – where the onus for proving materiality lies with the appellant – where the respondent demonstrated the error made no difference to the result – application dismissed