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High and Federal Court Migration Law Summaries 13 Feb 2020

Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3
High Court of Australia
Kiefel CJ; Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ
Constitutional law - migration law - two 'special cases' raising questions concerning s51(xix) Constitution - plaintiffs' visas cancelled under s501(3A) Migration Act 1958 (Cth) - plaintiffs contended they were outside purview of Migration Act, Australian Citizenship Act 2007 (Cth) and s51(xix) Constitution due to their 'special status as a "non-citizen, non-alien"' - plaintiffs claimed they could not be aliens because they were 'Aboriginal persons' - question stated for Court's opinion: 'is the plaintiff an "alien" within the meaning of s51(xix) of the Constitution?' - 'Aboriginal Australians' - 'tripartite test' in Mabo v Queensland [No 2] [1992] HCA 23 - held: Aboriginal Australians were not in reach of '"aliens" power' which s51(xix) of the Constitution conferred - majority could not agree whether one plaintiff (Love) was Aboriginal Australian so could not answer question - Court found one plaintiff (Thoms) was Aboriginal Australian - question answered 'No' in respect of Thoms.
Love
GLD18 v Minister for Home Affairs [2020] FCAFC 2
Full Court of the Federal Court of Australia
Allsop CJ; Mortimer & Snaden JJ
Migration law - two appeals - appellants were refused protection visas under 'complementary protection criterion' in s36(2)(aa) Migration Act 1958 (Cth) (Migration Act) - issue was whether a person could satisfy the complementary protection criterion if identified harm arose due to separation from family members who 'will not in fact return' with person to 'country of nationality' - whether Federal Circuit Court erred in answering question in negative - whether decision in Mansfield J in SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 (SZRSN) was incorrect with result its application was erroneous - whether SZRN distinguishable - whether error by Tribunal in respect of either or both cases - whether erroneous application of CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 (CSV15) - whether erroneous application of CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 - whether CSV15 correct - whether Tribunal erroneously found s36(2A) Migration Act “does not encompass harm arising from mental illness or harm” - held: appeal dismissed.
GLD18
Singh v Minister for Home Affairs [2020] FCAFC 7
Full Court of the Federal Court of Australia
Logan, Reeves & Derrington JJ
Migration law - delegate of Minister refused to grant applicant Partner (Temporary) (Class UK) visa (partner visa) - Administrative Appeals Tribunal affirmed delegate’s decision - Federal Circuit Court dismissed review application - whether Tribunal required to take interests of appellant’s child into account ’as a primary consideration’ - whether Tribunal erred in finding appellant and partner, who was appellant’s sponsor, ’had successfully attempted to have a child’ to bolster prospects of appellant obtaining partner visa - United Nations Convention on the Rights of the Child - Minister for Aboriginal affairs v Peko-Wallsend Ltd [1986] HCA 40 - held: appeal dismissed.
Singh
Benrabah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 4
Full Court of the Federal Court of Australia
Gleeson, Lee & Wheelahan JJ
Migration law - delegate of Minister declined to revoked cancellation of appellant's Class AZ Subclass 866 Protection visa under s501(3A) Migration Act 1958 (Cth) - Administrative Appeals Tribunal affirmed delegate’s decision - judicial review application dismissed - appellant appealed - appellant contended Tribunal erroneously failed to take relevant considerations into account, erred in law’s interpretation or application, and erroneously took irrelevant consideration into account - Ministerial Direction 65 - held: appeal dismissed.
Benrabah

Source:  Benchmark

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