Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2

HIGH COURT OF AUSTRALIA

GAGELER CJ,

GORDON, EDELMAN, GLEESON AND JAGOT JJ

MOUNIB ISMAIL PLAINTIFF

AND

MINISTER FOR IMMIGRATION, CITIZENSHIP AND

MULTICULTURAL AFFAIRS DEFENDANT

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] HCA 2

Date of Hearing: 6 September 2023

Date of Judgment: 7 February 2024

M20/2023

ORDER

1. The plaintiff be granted an extension of time until 28 March 2023 to file the application for a constitutional or other writ.

2. Application dismissed.

3. The plaintiff pay the defendant's costs of the application.

Representation

D J Hooke SC with J D Donnelly and J R Murphy for the plaintiff (instructed by Zarifi Lawyers)

R C Knowles KC with N D J Swan for the defendant (instructed by Australian Government Solicitor)

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

CATCHWORDS

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs

Immigration – Visas – Application for visa – Where delegate of Minister refused to grant visa under s 501 of Migration Act 1958 (Cth) as plaintiff did not pass character test and considerations favouring non‑refusal outweighed by considerations favouring refusal – Where delegate was required to comply with Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ("Direction 90") in determining whether to refuse to grant visa – Where Direction 90 required decision‑maker to take into account considerations, including protection of Australian community (para 8.1), any engagement in family violence by non‑citizens (para 8.2), best interests of minor children affected by decision (para 8.3), and expectations of Australian community (para 8.4) – Whether delegate failed to comply with para 8.3(1) of Direction 90 or failed to inquire about status of minor child in circumstances where it was legally unreasonable not to do so – Whether para 8.2 of Direction 90 permitted delegate to give weight to family violence considerations in circumstances where delegate had given weight to considerations under other paragraphs – Whether para 8.2 invalid – Whether delegate misapplied para 8.4 of Direction 90.