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

• Jurisdiction: Australia Federal only
• Judgment Date: 06 June 2022
• Neutral Citation: [2022] FCA 653
• Date: 06 June 2022
• Court: Federal Court

Federal Court of Australia

Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653

File numbers:	VID 417 of 2021VID 458 of 2021
Judgment of:	MIDDLETON J
Date of judgment:	6 June 2022
Catchwords:	MIGRATION – application for extension of time in relation to judicial review in original jurisdiction in relation to Minister’s cancellation decision under s 501(3) of the Migration Act – where Minister exercised cancellation power under s 501(3) instead of s 501(2) – held: Minister under no obligation to consider the legal consequences of selecting to exercise cancellation power under s 501(3) as opposed to s 501(2) – where Minister did not consider deprivation of predictability and constraint of a ministerial direction by exercising power under s 501(3) – held: Minister under no obligation to consider non-applicability of ministerial direction by exercising power under s 501(3) – where applicant determined not to have passed character test on the grounds of having been “sentenced to a term of imprisonment for 12 months or more” under s 501(7)(c) on basis of detention in youth justice centre while a minor – consideration of detention ordered under Children, Youth and Families Act 2005 (Vic) – held: applicant’s sentence of detention within the meaning of “imprisonment” under s 501 of the Migration Act – where Minister did not consider national interest implications of Australia potentially breaching its non-refoulement obligations to the applicant – consideration of Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195 and ENT19 v Minister for Home Affairs [2021] FCAFC 217 – held: Minister under no obligation to consider national interest implications in the circumstances – where Minister alleged to have exercised discretion under s 501(3) in relation to non-refoulement obligations owed to the applicant in error – held: no error in exercise of discretion under s 501(3) – application dismissed ; MIGRATION – application for judicial review in original jurisdiction in relation to Minister’s non-revocation decision under s 501C(4) of the Migration Act – where applicant determined to not pass character test on the ground of being “sentenced to term of imprisonment for 12 months or more” under s 501(7)(c) on basis of detention in youth justice centre while a minor – consideration of detention ordered under Children, Youth and Families Act 2005 (Vic) – held: applicant’s sentence of detention within the meaning of “imprisonment” under s 501 of the Migration Act – application dismissed
Legislation:	Migration Act 1958 (Cth) Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) Migration Regulations 2001 (Cth) Children, Youth and Families Act 2005 (Vic) Sentencing Act 1991 (Vic) Youth Justice Act 1992 (Qld)
Cases cited:	Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195 Acting Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs v CWY20 [2022] HCASL 93 Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 557 Burgess v Assistant Minister of Home Affairs (2019) 271 FCR 181; [2019] FCAFC 152 CCU21 v Minister for Home Affairs [2022] FCA 28 Chan v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 CNK v The Queen (2011) 32 VR 641; [2011] VSCA 228 Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201 DADQ v Minister for Immigration and Border Protection [2014] FCA 754; (2014) 143 ALD 659 Director of Public Prosecutions (Vic) v Borg (2016) 258 A Crim R; [2016] VSCA 53 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 397 ALR 1 DPP v Hodgson [2019] VSCA 49 ENT19 v Minister for Home Affairs [2021] FCAFC 217 EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 Howells v Minister of Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580; [2004] FCAFC 327 Minister for Home Affairs v ENT19 [2022] HCASL 94 Minister for Immigration and Border Protection v Le (2016) 244 FCR 56 Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211 Minister of Immigration, Local Government and Ethnic Affairs v Che Guang Xiang [1994] FCA 1259 NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38 NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44; [2014] FCAFC 39 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 Poutai v The Queen [2011] VSCA 382 R v AM [2021] VSC 397 R v O’Blein [2009] VSCA 159 RAC v The Queen [2011] VSCA 294 Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146; [2016] FCAFC 177 Ward v The Queen [2018] VSCA 80; (2018) 55 VR 307 Webster (a Pseudonym) v The Queen [2016] VSCA 66; (2016) 258 A Crim R 301
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	159
Date of hearing:	10 February 2022
Counsel for the Applicant in VID 417 of 2021 and VID 458 of 2021:	Mr J R Murphy
Solicitor for the Applicant in VID 417 of 2021 and VID 458 of 2021:	Victoria Legal Aid
Counsel for the Respondents in VID 417 of 2021 and VID 458 of 2021:	Mr A F Solomon-Bridge
Solicitor for the Respondents in VID 417 of 2021 and VID 458 of 2021:	Sparke Helmore

ORDERS

		VID 417 of 2021
BETWEEN:	SOMBEAU NUON Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

order made by:	MIDDLETON J
DATE OF ORDER:	6 June 2022

THE COURT ORDERS THAT:

1. The originating application be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

		VID 458 of 2021
BETWEEN:	SOMBEAU NUON Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

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