In the article that I posted on the Migration Alliance blog yesterday (24 June 2015) I reviewed the recent decision of the Full Court of the Federal Court, Moana v Minister for Immigration and Border Protection 2015) FCAFC 54 which addresses the “mandatory relevant considerations” that the Minister must take into account when exercising the powers under section 501(2) of the Migration Act to cancel a person’s visa on “character grounds”.
In brief, the Court held in Moana that it is mandatory that the Minister consider whether there is a “risk of harm” that would arise from the person’s remaining in Australia, but at the same time it is not mandatory that the Minister weight the likelihood of harm (for instance to evaluate how likely it is that the person might re-offend). Interestingly, although the Court in Moana held that “likelihood of harm” is not a “mandatory relevant consideration”, it is nonetheless a consideration that would be of central importance in most cases involving visa cancellations. The upshot of the Moana decision is that Ministerial decisions to cancel visas on character grounds that have not involved weighing the “likelihood of (future) harm” may well be vulnerable to challenge on grounds of “jurisdictional error”.
Today, I turn to discussion of another, although older, case that also relates to the matters that must be considered by the Minister when cancelling a visa on character grounds – Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) FCAFC 256 (17 September 2014). The Hyunh case is frequently cited and referred to in Federal Court decisions that review visa cancellations (for example in the very recent case of Berryman v Minister for immigration and Border Protection (2015) FCA 616 (23 June 2015)). It is therefore important for RMAs who deal with visa cancellation cases to be aware of this case as well.
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