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Federal Court Migration Law Decisions 27 March 2020
| EVK18 v Minister for Home Affairs [2020] FCAFC 49 Full Court of the Federal Court of Australia Flick, Griffiths & Moshinsky JJ Migration law - Minister's delegate cancelled appellant's visa (cancellation decision) under s501(3A) Migration Act 1958 (Cth) (Migration Act) - Assistant Minister, pursuant to s501CA(4) Migration Act, declined to revoke cancellation decision - Perram J of Federal Court of Australia dismissed judicial review application - whether Minister erroneously failed to consider or give 'meaningful consideration to' risk of harm - non-refoulment - 'outside context of non-refoulment' - 'another reason' - Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216 - held: no error in Minister's decision - appeal dismissed. EVK18 |
| Moorcroft v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 382 Federal Court of Australia Collier J Migration law - Minister's delegate refused to grant appellant Special Category (subclass 444) visa (later visa) - appellant had previously been granted a Special Category (subclass 444) (earlier visa) - earlier visa had been cancelled - appellant required to leave Australia as 'unlawful non-citizen' - decision to cancel earlier visa subsequently quashed - appellant returned to Australia - delegate refused to grant later visa on basis appellant had been "removed or deported from Australia" - appellant sought judicial review - Judge Vasta of Federal Circuit Court of Australia dismissed judicial review application - statutory interpretation - whether appellant had been “removed or deported from Australia” - “behaviour concern non-citizen” - s5(d) Migration Act 1958 (Cth) (Migration Act) - held: appellant had not been "removed" within meaning of Migration Act - appellant not a "behaviour concern non-citizen" - appeal allowed. Moorcroft |
| AJB18 v Minister for Home Affairs [2020] FCA 381 Federal Court of Australia Banks-Smith J Migration law - child sought protection visa - parents included in application - parents in de facto relationship - mother not divorced from husband - husband remained in Nepal - Minister's delegate refused to grant application - Administrative Appeals Tribunal affirmed delegate's decision - Judge Christopher Kendall of Federal Circuit Court of Australia dismissed judicial review application - test for 'serious harm' - s91R Migration Act 1958 (Cth) - whether error by Tribunal in manner in which it took into account harm child might face if returned to Nepal 'stemming from the potential lack of evidence of citizenship', and manner in which it took account parents' roles in assessing hardships - held: Tribunal failed to engage with claims or undertake required 'qualitative task' in assessing 'nature and effect of the identified feared harm' - constructive failure to carry out statutory task established - appeal allowed. AJB18 |
| EIC18 v Minister for Home Affairs [2020] FCA 370 Federal Court of Australia Davies J Migration law - first respondent's delegate refused to grant applicants Safe Haven Enterprise Visas - Immigration Assessment Authority affirmed delegate's decision - Judge Driver of Federal Circuit Court of Australia dismissed judicial review application - applicants sought extension of time to appeal - whether to grant leave to appeal - proposed appeal's merits - whether Authority failed to deal with aspect of claim - procedural fairness - Hossain v Minister for Immigration and Border Protection [2018] HCA 34 - held: Authority erroneously failed 'to address and consider' combination of characteristics of third applicant as 'integral component' of her claim of fear of harm if returned to Sri Lanka - error was material - extension of time to appeal granted - appeal allowed. EIC18 |
