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Federal Court Migration Law decisions 21 May 2020

BYN18 v Minister for Home Affairs [2020] FCAFC 80
Full Court of the Federal Court of Australia
Nicholas, Markovic & Lee JJ
Migration law - appellant's Class XA Subclass 866 Protection visa cancelled under s501(3A) Migration Act 1958 (Cth) (Migration Act) after Minister's delegate formed view appellant had 'substantial criminal record' under s501(6)(a) Migration Act and failed 'character test' - appellant given notice of decision by letter from Department which 'unnamed person' signed - appellant sought extension of time to contend that person who signed letter 'did not hold a delegation from the Minister authorising him or her to do what was required of the Minister by s501CA(3)' Migration Act - Judge Street of Federal Circuit Court dismissed application for extension of time on basis of lack of jurisdiction to deal with appellant's application - Judge Flick of Federal Court of Australia found notification given to appellant of decision to cancel appellant's visa was not a “decision” which was 'susceptible of judicial review' - whether giving of notice under s501CA(3) Migration Act was a “migration decision” 'as defined by' s5 Migration Act - 'privative clause decision' - ss474(a), 474(g) & 474(h) Migration Act - whether to decline to set aside Flick J's judgment 'on discretionary grounds' - whether decision in EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230 'plainly wrong' - whether unsatisfactory explanation for delay - held: Flick J erred in finding Street J lacked jurisdiction to deal with application for extension of time - appeal allowed.
DVE18 v Minister for Home Affairs [2020] FCAFC 83
Full Court of the Federal Court of Australia
Perram, Charlesworth & Stewart JJ
Migration law - appellant applied for Refugee and Humanitarian (Class XB) visa under s46 Migration Act 1958 (Cth) - 'nearly five years passed' before application's determination, by which time appellant was married with son - wife and son join as 'secondary applicants' - Minister refused to grant visa - appellant sought judicial review - Markovic J of Federal Court of Australia accepted that 'Minister had not had regard to the risk of harm faced by the appellant's wife and child' but concluded appellant had not advanced claim concerning risk which gave rise to an obligation to consider the claim - review application was dismissed - whether denial of procedural fairness, failure to undertake statutory task and/or constructive failure to exercise jurisdiction - whether Minister's decision 'legally unreasonable' - held: Markovic J erred in concluding that risk of harm was 'only faintly raised' in statutory declarations and that claim of risk of harm was 'not seriously advanced' - appeal allowed.
BEG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 660
Federal Court of Australia
Perry J
Migration law - first and second appellants were husband and wife - third appellant was son of first and second appellants - Refugee Review Tribunal affirmed decision of Minister's delegate to refused to grant protection visas to appellants - Tribunal accepted first and second appellants' contention that if they were returned to India as an 'inter-caste couple' there was 'real chance' they would be victims of 'honour killings' - however Tribunal found first and second appellants had 'right to enter and reside in Nepal', a right which they 'had not taken all possible steps to avail themselves of' - Tribunal found Australia did not owe appellants protection obligations under s36(3) Migration Act 1958 (Cth) (Migration Act) - held: Tribunal, contrary to s425 Migration Act, failed to extend 'real and meaningful invitation to the hearing' - appellant were not provided with 'real chance to present their case' - Tribunal's decision unreasonable due its 'failure to advise' appellants they could seek adjournment and 'to put further material before Tribunal concerning 'Nepal issue' - appeal allowed.


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