HSCK v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 313

Federal Court of Australia

HSCK v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 313 Review of: HSCK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3095

File number(s): VID 929 of 2023

Judgment of: BUTTON J

Date of judgment: 28 March 2024

Catchwords: MIGRATION – decision of Administrative Appeals Tribunal affirming decision of delegate of the Minister not to revoke mandatory cancellation of visa under s 501(3A) of the Migration Act 1958 (Cth) – where Tribunal decision made before decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 – whether constitutional limitation identified in NZYQ engaged – whether decision of Tribunal affected by jurisdictional error – application dismissed

Legislation: Migration Act 1958 (Cth) ss 3A, 5H, 36, 189, 196, 197C, 499, 501 Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

Cases cited: AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 130 Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 1; [2021] FCAFC 97 DLJ18 v Minister for Home Affairs (2019) 273 FCR 66; [2019] FCAFC 236 Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47; [2019] FCAFC 55 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 196; [2024] HCA 2 KQHR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1205 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005; [2023] HCA 37 RZSN v Minister for Home Affairs [2019] FCA 1731 Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146; [2016] FCAFC 177 WKMX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463; [2021] FCAFC 55 WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74