BRO18 v Minister for Home Affairs [2023] FCA 1193

BRO18 v Minister for Home Affairs [2023] FCA 1193

The Minister's decision to cancel the applicant's visa under s 501(2) of the Migration Act 1958 (Cth) was jurisdictionally erroneous because it relied on past convictions already relied on in a previous non-cancellation decision, contrary to the High Court's ruling in Makasa. The error was material as the necessary...

Source-derived case information.

Parties
Applicant: BRO18; Respondent: Minister for Home Affairs
Jurisdiction
Australia
Judgment Date
10 October 2023
Procedural Posture
Judicial Review Application (migration) / Judgment After Hearing on Application for Extension of Time and Substantive Relief
Outcome
Application allowed. Time for judicial review extended. Minister's decision quashed. Minister required to reconsider decision according to law. Costs to applicant.
Legal Topics
Visa Cancellation, Extension of Time, Judicial Review, Character Test Under Migration Act, Jurisdictional Error
Migration Law Administrative Law Visa Cancellation Extension of Time Judicial Review Character Test Under Migration Act Jurisdictional Error

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Parties

BRO18

Applicant

Minister for Home Affairs

Respondent

Procedural Posture

Judicial Review Application (migration) / Judgment After Hearing on Application for Extension of Time and Substantive Relief

Legal Issues

  1. 1 Whether to grant extension of time to apply for judicial review of visa cancellation
  2. 2 Whether Minister's decision to cancel visa was jurisdictionally erroneous due to reliance on prior convictions already considered in earlier non-cancellation decision
  3. 3 Whether the threshold of materiality applies to this jurisdictional error and if so whether it was met

Ratio Decidendi

The Minister's decision to cancel the applicant's visa under s 501(2) of the Migration Act 1958 (Cth) was jurisdictionally erroneous because it relied on past convictions already relied on in a previous non-cancellation decision, contrary to the High Court's ruling in Makasa. The error was material as the necessary subjective state of mind regarding other possible grounds for cancellation was not formed by the Minister. Accordingly, the decision was made without power and must be quashed. Extension of time is granted due to significant prejudice to the applicant and substantial merit of the claim despite the long delay.

Court Disposition

Application allowed. Time for judicial review extended. Minister's decision quashed. Minister required to reconsider decision according to law. Costs to applicant.

Orders

  • Leave to extend time to rely on the originating application dated 4 July 2022 is granted.
  • The application is allowed.