BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44

HIGH COURT OF AUSTRALIA

GORDON A-CJ,

EDELMAN, STEWARD, JAGOT AND BEECH‑JONES JJ

BIF23 BY HIS LITIGATION GUARDIAN

THE PUBLIC ADVOCATE APPELLANT

AND

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS RESPONDENT

BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] HCA 44

Date of Hearing: 3 September 2024

Date of Judgment: 4 December 2024

M44/2024

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Federal Court of Australia made on 19 December 2023 and, in their place, order that:

(a) the appeal be allowed with costs; and

(b) orders 2 and 3 of the Federal Circuit and Family Court of Australia (Division 2) made on 7 June 2023 be set aside and, in their place, order that:

(i) a declaration issue that the respondent is obliged to give BIF23, or if applicable his guardian, a written notice and invitation under s 501CA(3) of the Migration Act 1958 (Cth) in relation to the decision made on 24 November 2021 by the respondent's delegate to cancel BIF23's Class AH Subclass 101 Child (Permanent) visa ("the Decision");

(ii) a writ of certiorari issue to quash the notice and invitation purportedly given to BIF23 on 1 December 2021 under s 501CA(3) of the Migration Act 1958 (Cth);

(iii) a writ of mandamus issue directed to the respondent requiring the respondent to give BIF23 (by his litigation guardian, the Public Advocate) a written notice and invitation under s 501CA(3) of the Migration Act 1958 (Cth) in relation to the Decision; and

(iv) the respondent pay BIF23's costs.

On appeal from the Federal Court of Australia

Representation

N M Wood SC with E A M Brumby for the appellant (instructed by Victoria Legal Aid)

G A Hill SC with J A Barrington for the respondent (instructed by Sparke Helmore Lawyers)

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