Mr DL and Mr DM v Commonwealth of Australia (Department of Home Affairs)

At the time that Mr DL’s visa was cancelled: • the Department was of the view that Mr DL was a citizen of South Sudan • the Department was of the view that Mr DL was not owed protection obligations and could be returned to South Sudan • the Minister did not consider that it was appropriate to afford Mr DL a higher level of tolerance in light of the length of time he had spent in Australia or in re. [...] Because Mr DL’s visa was cancelled by the Minister personally, and not by a departmental delegate, the decision could not be reviewed on the merits by the Administrative Appeals Tribunal.30 Mr DL’s application for judicial review of the cancellation decision was dismissed by the Federal Court31 and, on appeal, by the Full Court of the Federal Court.32 In those cases, the courts were limited to ass. [...] While this was not a factor directly relevant to the test to be applied, ‘the real risk to the applicant on being sent to South Sudan means that the legislation must be applied with appropriate rigour having regard to the gravity of the outcome for the applicant’.37 74. [...] Similarly, the decision by the Minister to consider or not to consider exercising a discretionary power (following a ‘first stage’ submission from the Department), and a decision by the Minister to exercise or not exercise a discretionary power (following a ‘second stage’ submission from the Department) are also ‘acts’ for the purposes of the AHRC Act. [...] In a submission to the Minister dated 25 September 2019, the Department noted that Mr DL’s case had been referred to the Minister to consider the grant of a bridging visa because: • he had been found to be owed protection by Australia • he was ineligible for a protection visa because of a finding that he was considered to be a risk to the Australian community • he could not be involuntarily remove.