FEL19 v Minister for Immigration and Multicultural Affairs [2024] FCA 1249

Federal Court of Australia

FEL19 v Minister for Immigration and Multicultural Affairs [2024] FCA 1249 File number: NSD 1077 of 2024

Judgment of: BROMWICH J

Date of judgment: 29 October 2024

Catchwords: MIGRATION – s 501BA cancellation decision made in person by the Minister for Immigration and Multicultural Affairs – where the Minister admits he made a legal error in finding that applicant's protection visa application was not "finally determined" for the purposes of s 198(5A) of the Migration Act 1958 (Cth), so that this provision restrained the applicant's removal from Australia – where an injunction restrained the Minister from removing the applicant – where the applicant contends the error was material and the Minister denies the legal error was material – HELD: the error was not material as the fact the applicant could not be removed remained correct after the source of the error was removed – application dismissed with costs

Legislation: Migration Act 1958 (Cth) (as at 18 June 2024) ss 5(9), 5(9A), 5(9A)(e), 5(9B); 198(5), 198(5A), 198(5A)(b)(ii); 473EA(2); 501BA, 501BA(2), 501BA(3)

Cases cited: FEL19 v Minister for Immigration [2020] FCCA 331 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 23

Date of hearing: 23 October 2024

Counsel for the Applicant: Mr L Karp

Solicitor for the Applicant: Mr W Berthelot, Legal Aid Commission of NSW