KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 23 June 2020
• Neutral Citation: [2020] FCAFC 108
• Date: 23 June 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108

Appeal from:	KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1207
File number:	WAD 397 of 2019
Judges:	BROMBERG, O'CALLAGHAN AND STEWARD JJ
Date of judgment:	23 June 2020
Catchwords:	MIGRATION – appeal from a judgment of the Federal Court of Australia – where appellant applied for safe haven enterprise visa following convictions for various criminal offences – where Minister made a decision to refuse the grant of the visa under s 501 of the Migration Act 1958 (Cth) – where decision of Minister set aside by Tribunal – where Minister personally decided to refuse the grant of a protection visa under s 501A after approximately 18 months – whether primary judge erred in dismissing an application for judicial review of the decision of the Minister – whether primary judge erred by failing to find the Minister’s decision was attended by unreasonable delay – whether there is an implied duty to exercise the power under s 501A within a reasonable time – whether ss 501 and 501A can be applied to refuse the grant of a protection visa
Legislation:	Acts Interpretation Act 1901 (Cth) s 13 Commonwealth of Australia Constitution Act 1900 (Imp.) ss 9, 109 Migration Act 1958 (Cth) ss 4, 5, 5H, 5J, 5M, 29, 30, 31, 35, 35A, 36, 45, 46, 47, 65, 84, 85, 91W, 91WA, 91WB, 91U, 116, 197C, 200, 201, 411, 500, 501, 501A, 501B, 501C, 501BA, 501CA, 501E, 501F, 501H Migration Amendment (Complementary Protection) Act 2011 (Cth) Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth)
Cases cited:	AEM20 v Minister for Home Affairs [2020] FCA 623 AFX17 v Minister for Home Affairs [2020] FCA 807 AFX17 v Minister for Home Affairs (No 2) [2020] FCA 858 Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65 Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 AQM18 v Minister for Immigration and Border Protection [2018] FCA 944 AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424 ASP15 v Commonwealth of Australia (2016) 248 FCR 372 Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union (2018) 268 FCR 128 BAL19 v Minister for Home Affairs [2019] FCA 2189 BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 BFW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 562 BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307 Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1 Commissioner of Taxation v Greenhatch (2012); 203 FCR 134 Cridland v Commissioner of Taxation (1977) 140 CLR 330 Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 DLJ18 v Minister for Home Affairs [2019] FCAFC 236 DOB18 v Minister for Home Affairs (2019) 269 FCR 636 FCS17 v Minister for Home Affairs [2020] FCAFC 68 Federal Commissioner of Taxation v Gulland (1985) 160 CLR 55 Federal Commissioner of Taxation v McNeil (2007) 229 CLR 656 FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754 Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120 Koon Wing Lau v Calwell (1949) 80 CLR 533 Minister for Home Affairs v Brown [2020] FCAFC 21 Minister for Immigration and Citizenship v Makasa (2012) 207 FCR 488 Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 Minister for Immigration and Multicultural Affairs v Nystrom (2006) 228 CLR 566 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 NAGV v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 O’Keefe v Calwell (1949) 77 CLR 261 Plaintiff M150/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 199 Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 Plaintiff S4/2014 v Minister for Immigration and Broder Protection (2014) 253 CLR 219 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Reg. (European Roma Rights Centre) v Immigration Officer at Prague Airport [2005] 2 AC 1 Reseck v Federal Commissioner of Taxation (1975) 133 CLR 45 SAS Trustee Corp v Miles (2018) 265 CLR 137 Shuster v Minister for Immigration and Citizenship (2008) 167 FCR 186 Smith v The Queen (1994) 181 CLR 338 SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 SZLDG v Minister for Immigration and Citizenship (2008) 166 FCR 230 SZOQQ v Minister for Immigration and Citizenship (2013) 251 CLR 577 Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 The Ombudsman v Laughton (2005) 64 NSWLR 114 Thornton v Repatriation Commission [1981] FCA 71; (1981) 52 FLR 285 Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 VWOK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 336 VWOK v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 135
Date of hearing:	21 May 2020
Registry:
Division:
National Practice Area:
Category:	Catchwords
Number of paragraphs:	303
Counsel for the Appellant:	Ms L De Ferrari SC with Mr M Guo
Solicitor for the Appellant:	Victoria Legal Aid
Counsel for the Respondent:	Mr G Kennett SC with Mr G Johnson and Mr B Lim
Solicitor for the Respondent:	Sparke Helmore Lawyers
Counsel for the Australian Human Rights Commission (Intervener):	Mr C Lenehan SC with Mr T Wood
Solicitor for the Australian Human Rights Commission (Intervener):	Australian Human Rights Commission

ORDERS

		WAD 397 of 2019
BETWEEN:	KDSP Appellant
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