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Federal and High Court summaries June 2019: Migration Law
| Plaintiff M74/2018 v Minister for Home Affairs & Anor [2019] HCA 17 High Court of Australia Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ Migration law - plaintiff was 'unlawful non-citizen' in immigration detention - defendants relied on ss189 & 196 Migration Act 1958 (Cth) as authority to detain plaintiff "for the purpose of removal from Australia as soon as that becomes reasonably practicable" - plaintiff sought declaration detention not authorised by ss189 & 196 Migration Act and that detention was unlawful - plaintiff sought issue of 'writ of habeas corpus' or that he be released from custody - parties, pursuant to r27.08 High Court Rules 2004 (Cth), agreed on special case - questions of law stated - plaintiff provided 'inferences of fact' which it invited Court to draw - 'inconsistent statements' - whether plaintiff's options for removal exhausted - whether basis to apply minority view in Al-Kateb v Godwin [2004] HCA 37 - held: plaintiff's inferences not open - questions stated in special case did not arise. Plaintiff M74/2018 |
| Ali v Minister for Home Affairs [2019] FCAFC 93 Full Court of the Federal Court of Australia Jagot, Burley & Lee JJ Migration law - appellant's visa cancelled under ss501(3A)(a) & 501(3A)(b) Migration Act 1958 (Cth) - first respondent's delegate affirmed decision - Administrative Appeals Tribunal affirmed delegate's decision - primary judge dismissed application for judicial review - applicant sought to appeal - applicant contended Court erred in finding Tribunal considered impediments to appellant if appellant returned to Fiji - appellant also contended that finding he had 'serious criminal record' was erroneous - grounds of appeal not raised before primary judge - whether to grant leave to appeal - held: leave to appeal granted - appeal dismissed. Ali |
| BIR17 v Minister for Immigration and Border Protection [2019] FCA 850 Federal Court of Australia Charlesworth J Migration law - Minister's delegate refused to grant appellant a Temporary Protection (subclass 785) visa - Immigration Assessment Authority affirmed delegate's decision - primary judge dismissed application for judicial review - whether Tribunal's reasoning illogical - whether failure by primary judge 'to identify the alleged error' - credit - MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 - held: appeal dismissed. BIR17 |
| Kaur v Minister for Home Affairs [2019] FCA 854 Federal Court of Australia Markovic J Migration law - first respondent's delegate refused to grant appellant Student (Temporary) (Class TU) visa - Tribunal affirmed delegate's decision - Federal Circuit Court dismissed application for judicial review - whether denial of procedural fairness - whether erroneous 'adverse credibility findings' - whether credibility findings 'irrational, illogical or unreasonable' - whether inadequacy of reasons - whether bias - whether legal unreasonableness in sense in Minister for Immigration and Citizenship v Li [2013] HCA 18 - whether primary judge erroneously made determinations 'in his Honour's own opinion' - held: appeal dismissed. Kaur |
| APC16 v Minister for Immigration and Border Protection [2019] FCA 847 Federal Court of Australia Anderson J Migration law - first respondent's delegate refused to grant applicant a protection visa - Administrative Appeals Tribunal affirmed delegate's decision - Federal Circuit Court dismissed application for judicial review on basis applicant failed to attend application's hearing - applicant sought extension of time to appeal from Federal Circuit Court's dismissal of application to reinstate proceeding - adequacy of explanation for delay - whether decision of Federal Circuit Court 'attended by sufficient doubt to warrant' Court's reconsideration - held: Court not satisfied to grant extension of time - even if extension granted, Court would have refused leave to appeal against Federal Circuit Court's decision - application dismissed. APC16 |
Source: Benchmark https://benchmarkinc.com.au/web/
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