Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50

HIGH COURT OF AUSTRALIA

GLEESON CJ

GUMMOW, HAYNE, HEYDON AND CRENNAN JJ

MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT

AND

STEFAN NYSTROM RESPONDENT

Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50

8 November 2006

M5/2006

ORDER

1. Appeal allowed.

2. Set aside paragraphs 2, 3, 4(a) and (b) (i), (ii) and (iii) of the order of the Full Court of the Federal Court made on 1 July 2005 and, in their place, order that the appeal be dismissed.

3. The appellant pay the respondent's costs of the appeal to this Court.

On appeal from the Federal Court of Australia

Representation

A L Cavanough QC with S P Donaghue for the appellant (instructed by Australian Government Solicitor)

D S Mortimer SC with L G De Ferrari for the respondent (instructed by Victoria Legal Aid)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom

Immigration – Cancellation of Visas – s 501(2) of the Migration Act 1958 (Cth) ("the Act") – Where Minister purported to cancel a "transitional (permanent) visa" on the basis of the respondent failing the character test in s 501(6) of the Act – Where respondent had a substantial criminal record – Where respondent had lived in Australia since he was 27 days old – Where respondent held an "absorbed person visa" – Whether the respondent also held a "transitional (permanent) visa" – Whether as a matter of construction the Act allowed the respondent to hold both an "absorbed person visa" and a "transitional (permanent) visa".

Administrative law – Decision of Minister under s 501(2) or s 503 of the Act – Jurisdictional error – Whether there was a misdescription of a visa which invalidated the Minister's decision – Whether a failure to take into account relevant considerations invalidated a decision – Whether the Minister's cancellation of a "transitional (permanent) visa" and disregard of the "absorbed person visa" amounted to jurisdictional error – Where s 501F(3) would operate to cancel both visas.