AZR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 89

Federal Court of Australia

AZR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 89 Review of: Decision of Administrative Appeals Tribunal

File number(s): VID 500 of 2022

Judgment of: WHEELAHAN J

Date of judgment: 16 February 2024

Catchwords: MIGRATION — application for judicial review of a decision of the Administrative Appeals Tribunal under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the applicant's visa – where the applicant's visa was mandatorily cancelled pursuant to s 501(3A) because he did not pass the character test – where a delegate of the Minister determined not to revoke the cancellation under s 501CA(4) – where the applicant sought merits review of the delegate's non-revocation decision – where the Tribunal's first decision to affirm the non-revocation decision was set aside by consent – where, on remitter, a differently constituted Tribunal affirmed the non-revocation decision – whether the Tribunal's second decision was affected by jurisdictional error – whether the Tribunal misapprehended the nature and extent of the constraints on its jurisdiction – the Tribunal correctly comprehended the range of options open to it for considering international non-refoulement obligations – the Tribunal's statement that it "cannot" engage with those obligations referred to practical, not legal, constraints – whether the Tribunal constructively failed to exercise its jurisdiction by failing to read, identify, understand, and evaluate representations made by the applicant – the Tribunal was not obliged to consider each particularised element of the broader representation – the Tribunal did engage with the broader representation as a whole – whether the Tribunal constructively failed to exercise its jurisdiction by electing not to defer assessment of the applicant's claims to engage Australia's non-refoulement obligations and then failing to assess those claims according to law – it was open to the Tribunal not to consider the non-refoulement obligations as if determining an application for a protection visa – no jurisdictional error established – application dismissed with costs. PRACTICE AND PROCEDURE — non-publication and suppression orders pursuant to s 37AF and ss 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976 (Cth) – s 91X of the Migration Act was not engaged – revealing the identity of the applicant would undermine the legislative objects of the Migration Act and the Sex Offenders Registration Act 2004 (Vic) – continued use of a pseudonym is necessary to prevent prejudice to the proper administration of justice, and to protect the applicant's safety – pseudonym order made.