Cummings v Minister for Immigration and Multicultural Affairs [2025] FCA 1373 | Case summary

Judgment (2 paragraphs)

[1]

The applicant, Mr Cummings, is a citizen of New Zealand. Until 14 February 2025, he was the holder of a Class TY Subclass 444 Special Category (Temporary) visa (the "Visa"). By a decision made on that date (the "Decision"), the respondent (the "Minister") resolved to cancel the Visa under s 501A(3) of the Migration Act 1958 (the "Act").
By his application before this court, Mr Cummings moves for prerogative relief to quash the Decision. He advances several grounds in that regard. One of them focuses upon the account that the Minister took of the interests of Mr Cummings's children. In assessing whether or not to cancel the Visa, the Minister was moved to consider those interests; and resolved that he would do so in a way that conformed to art 3 of the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force on 2 September 1990) (the "Convention").
The Minister now accepts that he did not do that; and that his failure in that regard suffices to taint the Decision as a product of jurisdictional error. The parties are agreed that Mr Cummings's application should succeed and that costs should follow that event. They propose orders by consent to that end.
Provided that the court is otherwise empowered to grant relief of a particular kind, r 39.11 of the Federal Court Rules 2011 (Cth) confers a power to grant it by consent: Linfox Australia Pty Ltd v Warusawithana [4] (Horan J) and the cases there referred to. In ; , 80 [1] and 86 [18], French J considered the court's responsibilities when exercising that power. Its exercise requires that the court strike a balance between the public interest in the settlement of matters and such other public interests as might apply in the execution of the court's function. It is not a "rubber stamping" process. Rather, "...the court is not merely giving effect to the wishes of the parties, it is exercising a public function and must have regard to the public interest in doing so."

Cummings v Minister for Immigration and Multicultural Affairs

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Judgment (2 paragraphs)

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Cases Cited (18)