AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 130

Federal Court of Australia

AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 130 File number: NSD 1288 of 2023

Judgment of: KENNETT J

Date of judgment: 26 February 2024

Catchwords: MIGRATION – where applicant was refused a Class XA Subclass 866 (Protection) visa because he did not satisfy the character test – where Administrative Appeals Tribunal decided applicant should be granted that visa – where Minister decided under s 501A(2) of the Migration Act 1958 (Cth) to substitute his own decision for the Tribunal's decision – whether Minister's decision to replace Tribunal's decision was unreasonable in the light of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 ADMINISTRATIVE LAW – where Minister's reasoning involved incorrectly identifying the potential consequences of the decision because of an error of law – where error of law was not with respect to the terms or limits of the power being exercised or the criteria for its exercise – whether such an error of law goes to jurisdiction

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 Migration Act 1958 (Cth) ss 3A, 36, 48A, 196, 197AB, 197C, 197D, 499, 501, 501A, 501CA Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)

Cases cited: Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 Ha v New South Wales (1997) 189 CLR 465 Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] FCA 1218; 256 FCR 50 Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 270 CLR 430 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737 NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; 264 CLR 1 XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6; 289 FCR 256