Federal Court. In the context of assessing the national interest, would the threshold of being a danger to the community only be met if the applicant was able to be a part of that community and neither in gaol nor in immigration detention?
Chronology of events:
On 16 February 2015, cancelled the applicant's visa under s 501(3)(b) of the Migration Act 1958 (Cth).
On 28 November 2023, the High Court published its reasons in NZYQ.
On 20 August 2024, the Full Court of the Federal Court published reasons in AJN23, referring to NZYQ and LPDT.
On 23 December 2024, the applicant applied to the Federal Court (FCA) for judicial review of the Minister's decision, and for a time extension within which to seek judicial review.
Section 501(3)(b) gave the Minister the power to cancel a visa if, inter alia, "the Minister is satisfied that the visa cancellation is in the national interest".
The Federal Court (FCA) said:
2 Mr Kiad and the Minister agree that the decision involves error, namely that the Minister had found that, because Mr Kiad was stateless, the cancellation of his visa would result in him being placed in immigration detention, perhaps indefinitely. That understanding was subsequently shown to be incorrect by the High Court’s judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 415 ALR 254, which overturned long-standing authority on the lawfulness of indefinite detention in Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562. Overturning a prior decision of the High Court is an uncommon event, and this was a momentous change in an area affecting many non-citizens, even though it had been long anticipated.
Some of the questions to the FCA were as follows:
Question 1: Is the lion’s share of that delay "explained by the fact that the error in the Minister’s decision was unknown, and could not have been known, until the publication of the reasons in NZYQ"?
Question 2: For the purpose of assessing the time extension application, can it be said that "the time properly to be taken into account is confined to the roughly four-month gap between the decision in AJN23 on 20 August 2024, and the filing of the application for an extension of time on 23 December 2024"?
Question 3: Does LPDT at [16] involve the materiality question of whether it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made?
Question 4: Would the threshold of being a danger to the community "only be met if Mr Kiad was able to be a part of that community and not either in gaol or in immigration detention"?
The FCA answered those questions as follows: