Wahed v Minister for Home Affairs [2018] FCA 1336

Wahed v Minister for Home Affairs [2018] FCA 1336

The application failed because the only pleaded constitutional ground was concluded against the applicant by Falzon, which bound the Court to hold that s 501(3A) of the Migration Act 1958 (Cth) is not invalid on the asserted Chapter III basis. The constitutional point was therefore not real and substantial for s 78B purposes. The applicant's additional submissions concerned merits matters already addressed by the Tribunal and disclosed no jurisdictional error.

Jurisdiction
Australia
Judgment Date
31 August 2018
Procedural Posture
Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming a Decision Not to Revoke Cancellation of a Visa / Federal Court Judgment on Application; Application Dismissed
Outcome
Application dismissed; applicant ordered to pay the costs of the first respondent.
Legal Topics
['visa Cancellation on Character Grounds' 'non Revocation Under S 501 Ca(4) of the Migration Act 1958 (cth)' 'judicial Review for Jurisdictional Error' 'validity of S 501(3 A) of the Migration Act 1958 (cth)' 'section 78 B Notices Under the Judiciary Act 1903 (cth)']
['migration Law' 'administrative Law' 'constitutional Law' 'practice and Procedure'] ['visa Cancellation on Character Grounds' 'non Revocation Under S 501 Ca(4) of the Migration Act 1958 (cth)' 'judicial Review for Jurisdictional Error' 'validity of S 501(3 A) of the Migration Act 1958 (cth)' 'section 78 B Notices Under the Judiciary Act 1903 (cth)']

Case Brief

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Procedural Posture

Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming a Decision Not to Revoke Cancellation of a Visa / Federal Court Judgment on Application; Application Dismissed

Legal Issues

  1. 1 ["Whether the Tribunal's decision to affirm the non-revocation decision was affected by jurisdictional error." 'Whether s 501(3A) of the Migration Act 1958 (Cth) is invalid as an unlawful interference with the judicial power of the Commonwealth.' 'Whether the application raised a real and substantial constitutional issue requiring notices under s 78B of the Judiciary Act 1903 (Cth).']

Ratio Decidendi

The application failed because the only pleaded constitutional ground was concluded against the applicant by Falzon, which bound the Court to hold that s 501(3A) of the Migration Act 1958 (Cth) is not invalid on the asserted Chapter III basis. The constitutional point was therefore not real and substantial for s 78B purposes. The applicant's additional submissions concerned merits matters already addressed by the Tribunal and disclosed no jurisdictional error.

Court Disposition

Application dismissed; applicant ordered to pay the costs of the first respondent.

Orders

  • ['The application is dismissed.' 'The applicant pay the costs of the first respondent.']