BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 387

Federal Court of Australia

BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 387 Appeal from: BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 635

File number(s): VID 617 of 2023

Judgment of: BUTTON J

Date of judgment: 18 April 2024

Catchwords: MIGRATION – visas – appeal from orders of a judge of the Federal Circuit Court and Family Court of Australia (Division 2) dismissing application for judicial review – where the Appellant was granted a Global Special Humanitarian visa in October 2010 – where delegate subsequently cancelled the Appellant's visa pursuant to s 116(1AA) of the Migration Act 1958 (Cth) (the Act) – where the Administrative Appeals Tribunal affirmed the delegate's decision – whether the primary judge erred in construing the meaning of the term "identity" in s 116(1AA) of the Act – whether the primary judge erred in finding that procedural fairness was not required to be afforded to the Appellant's half-brother in circumstances where the half-brother held a visa as a dependent member of the Appellant's family unit – whether the primary judge erred in failing to find that the Tribunal had failed to consider the mandatory legal consequences of its decision – appeal dismissed

Legislation: Migration Act 1958 (Cth) ss 116, 118A, 119, 140, 189, 198 Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)

Cases cited: Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9 Applicants M16 of 2004 v Minister for Immigration and Multicultural Affairs (2005) 148 FCR 46; [2005] FCA 1641 Baini v R (2012) 246 CLR 469; [2012] HCA 59 BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39; [2019] FCA 574 BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865 BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 635 Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 286 FCR 459; [2021] FCAFC 130 Commissioner of Police v Tanos (1958) 98 CLR 383 Farah v Minister for Immigration and Citizenship [2011] FCA 185 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Minister for Immigration & Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 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 3 Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319; [2010] HCA 41 Saeed v Minister for Immigration and Citizenship (2010) 251 CLR 25; [2010] HCA 23