Page:Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/11

Beech-Jones J

review of the AAT's decision. On 26 April 2022, an appeal from that decision was dismissed as incompetent.

On 10 February 2023, the plaintiff commenced these proceedings. On 14 February 2023, Gleeson J restrained the Minister from removing the plaintiff from Australia, granted the plaintiff an extension of time to file his application and, on 14 July 2023, referred the application to the Full Court.

In circumstances where the AAT did not address the merits of the delegate's decision and the Federal Court did not have jurisdiction to address the validity of that decision, it was not suggested that any of those proceedings, or the judgments they yielded, affected the challenge in this Court to the validity of the delegate's decision or the relief that should be granted.

The issues paper and the delegate's decision

As at October 2013, s 501(2) of the Migration Act provided that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects the person does not pass the "character test" and the person does not satisfy the Minister that they pass that test. This power could be, and was, delegated. A person did not pass the character test if, inter alia, they had a "substantial criminal record", which included being sentenced to a term of imprisonment for 12 months or more. The sentences imposed for the 2003 and 2007 offences satisfied the definition of a substantial criminal record.

Placed before the delegate was a memorandum prepared by a departmental officer entitled "Issues for consideration of possible visa cancellation under subsection 501(2) of the Migration Act 1958" ("the issues paper"). The issues paper addressed the plaintiff's circumstances by reference to a direction made under s 499 of the Migration Act in relation to visa refusals and cancellations under