Federal Court Summaries: Migration Law - 10 Feb 2022
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6 Federal Court of Australia Full Court Rares, Yates and Snaden JJ Migration law - visa - cancellation - character grounds - criminal offending - prior cancellation under s501(3A) of Act - earlier decision by Delegate of Minister under s501CA(4)(b) of Migration Act 1958 (Cth) to revoke cancellation - later attempt to effect cancellation a second time under s501(3A) of the Act when read with s33(1) of the Acts Interpretation Act 1901 (Cth) - cancellation by reference to same offending - not permissible - "duty cannot be exercised more than once in respect of the same failure to pass the character test in s501(3A)(a)" - jurisdiction and powers of Delegate, Minister and Tribunal - principle in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd - appeal stood over for further orders. XJLR |
Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 38 Federal Court of Australia Middleton J Migration law - visas - application to add dependent children to a Contributory Parent visa application - whether Minister had made an earlier determination that the children were validly added - whether Minister erred in later departing from earlier determination - Judge Egan, of Federal Circuit Court of Australia, dismissed application for judicial review - primary judge erred in not finding earlier determination - later determination without power - reg 2.08A(1)(a)-(da) does not require Minister to be satisfied that children are indeed dependents - regulation contains objective criteria including provision of written claim of dependent status by primary applicants - dependent status to be determined at merits stage under Sch 2 of Regulations - appeal allowed. Pham |
CHVS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 34 Federal Court of Australia Kerr J Migration Law - cancellation - decision by Tribunal that no jurisdiction - protection visa - second decision by Tribunal that no jurisdiction - extension of time sought for judicial review of both decisions - judicial review ultimately pressed with respect to first decision - Tribunal without jurisdiction on different basis from that given - Notification earlier given pursuant to s501CA(3)(b) of the Migration Act 1958 (Cth) invalid - requirements of reg 2.52(2)(b) of the Migration Regulations - retroactive effect of more recent Full Federal Court decisions - significance of Minister seeking special leave to appeal - application dismissed. CHVS |