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Federal Court Summaries 4 July 2019 - Migration Decisions
| Sowa v Minister for Home Affairs [2019] FCAFC 111 Full Court of the Federal Court of Australia Jagot, Bromwich & Thawley JJ Migration - Minister's delegate cancelled appellant's visa under s501(3A) Migration Act 1958 (Cth) (mandatory cancellation decision) - Assistant Minister declined to revoke mandatory cancellation decision - primary judge dismissed judicial review application - whether erroneous failure to apply "assumption" in appellant's favour that it was "unlikely" non-refoulment obligations would be considered in 'future protection visa application' 'ahead of character grounds' - whether erroneous failure to understand future protection visa application could be refused 'purely on character grounds' under s65 Migration Act 1958 (Cth) (Migration Act) - whether erroneous failure to 'expressly consider' s196 Migration Act's operation or that appellant could be 'indefinitely detained' under s189 Migration Act - whether erroneous failure to expressly consider s198 Migration Act's operation - Omar v Minister for Home Affairs [2019] FCA 279 - held: appeal dismissed. Sowa |
| Russell v Minister for Home Affairs [2019] FCAFC 110 Full Court of the Federal Court of Australia Nicholas, Bromwich & Burley JJ Migration - Minister's delegate cancelled appellant's visa 'on character grounds' under s501(3A) Migration Act 1958 (Cth) - Minister's delegate declined to revoke cancellation decision - Administrative Appeals Tribunal (AAT) found it did not have jurisdiction to hear 'merits review' application because application 'filed out of time' - primary judge dismissed judicial review application - whether AAT erred in finding it did not have jurisdiction - s500(6B) Migration Act 1958 (Cth) - s14A Electronic Transactions Act 1999 (Cth) - 'concept of receipt' - whether concept of receipt extended to 'receipt within an information system' - held: appeal dismissed. Russell |
| Vo v Minister for Home Affairs [2019] FCAFC 108 Full Court of the Federal Court of Australia Derrington, Banks-Smith & Colvin JJ Migration - appellant's son (My Nguyen) obtained visa to allow son 'to live and work in Australia' - appellant, as 'secondary applicant', sought visa on basis 'she was a member of Mr Nguyen's family unit' and within cl 187.311 Sch 2, Migration Regulations 1994 (Cth) - Minister's delegate refused visa - Administrative Appeal's Tribunal affirmed delegate's decision - whether reg 1.05A Migration Regulations 1994 (Cth) applied where 'a person is wholly or substantially reliant on more than one person' - held: Tribunal erroneously 'failed to discharge its statutory task' - jurisdictional error established - appeal allowed. Vo |
| FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106 Full Court of the Federal Court of Australia Kerr, White & Charlesworth JJ Migration - Minister's delegate refused to grant appellant a Safe Haven Enterprise Visa (SHEV) - Immigration Assessment Authority (IAA) affirmed delegate's decision - primary judge found IAA erred in affirming delegate's decision but refused relief on 'on discretionary grounds' - appellant appealed against refusal to grant relief - Minister's cross-appealed - whether primary judge correctly found jurisdictional error by IAA - meaning of "national" and "nationality" - 'the mischief rule' - whether primary judge erred in finding IAA erroneously applied 'wrong test' in finding appellant was 'national of Sri Lanka' - whether primary judge erred in finding error by IAA was jurisdictional - whether erroneous finding appellant 'lacked "genuineness or good faith"' - whether appellant 'misled IAA' - held: primary judge erred in refusal to grant appellant 'discretionary relief' - appeal allowed - cross-appeal dismissed. FER17 |
| BGQ18 v Minister for Home Affairs [2019] FCA 1001 Federal Court of Australia Flick J Migration - Minister's delegate refused appellant's application for a Safe Haven Enterprise Visa - Immigration Assessment Authority affirmed delegate's decision - Federal Circuit Court of Australia refused judicial review application - whether erroneous failure to consider claims - 'imputed political opinion' - held: appeal dismissed. BGQ18 |
Source: https://benchmarkinc.com.au/web/
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