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Federal Court Summaries - Migration Law - May 2020
| ERY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 569 Federal Court of Australia Stewart J Migration law - applicant sought judicial review of Minister's 'personal decision', under s501(1) Migration Act 1958 (Cth) (Migration Act), to refuse applicant a Protection (Class XA) visa - Minister was not satisfied applicant passed applicant 'character test' on basis of 'Interpol notice' concerning applicant - whether open to Minister 'to reasonably draw the inference that the applicant would present' risk to Australian community or segment of Australian community - whether misconstruction and misapplication of s501(6)(h) - whether Minister failed to consider information in Department's possession - whether Minister's decision 'legally unreasonable' - 'community expectation' - s195A Migration Act - 'legal unreasonableness' - held: Court not satisfied Minister could 'reasonably have inferred' from 'Interpol Red Notice' that applicant would present risk to Australian community or a segment of it - legal unreasonableness established - Minister's decision set aside. ERY19 |
| Kim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 583 Federal Court of Australia Gleeson J Migration law - Minister's delegate declined to revoke cancellation of applicant's Class BB Subclass 155 (Five Year Resident Return) visa - Administrative Appeals Tribunal affirmed delegate's decision - applicant sought judicial review - applicant contended Tribunal failed to take into account relevant consideration 'in addressing the extent of impediments' if he 'were removed' - Minister for Immigration and Citizenship v Buadromo [2012] FCAFC 101 - held: Tribunal erred by failure to consider impact of health of applicant 'as required by' cl 14.5(1)(a) Direction No. 79 - jurisdictional error established - judicial review application upheld - matter remitted. Kim |
| CBI18 v Minister for Immigration & Anor [2020] FCCA 1018 Federal Circuit Court of Australia Judge Heffernan Migration law - Immigration Assessment Authority affirmed refusal to grant applicant a Safe Haven Enterprise (Class XE) (Subclass 790) Visa - applicant sought judicial review - whether Authority failed to consider 'relevant material' - ss473CB(1)(b), 473CC & 473DD(b) Migration Act 1958 (Cth) - held: Authority failed to consider relevant material consisting of letter which was provided by wife of applicant - letter was 'highly material' to applicant's claims - constructive failure to exercise jurisdiction established - jurisdictional error established - orders made for issuing of writs in nature of certiorari and mandamus. CBI18 |
| FJV18 v Minister For Home Affairs & Anor [2020] FCCA 1032 Federal Circuit Court of Australia Judge Young Migration law - Immigration Assessment Authority affirmed decision of Minister's delegate to refuse to grant applicant a Safe Haven Enterprise Visa - Authority not satisfied, for purpose of s5J(1) Migration Act 1958 (Cth) (Migration Act), there was 'real chance of persecution which relates to all areas of Pakistan' - Authority concluded applicant would not face real chance of persecution if 'relocated to Islamabad' - 'reasonableness of relocation' - question of relocation's reasonableness arising in relation to consideration of complementary protection, not the assessment of whether person is a refugee - CS17 v Minister for Home Affairs [2020] FCAFC 68 - s36(2B)(a) Migration Act - 'level of generality' of Authority's approach to relocation question - held: Authority did not discharge statutory task to examine material and to make findings concerning whether applicant and family, 'could as a matter of practical reality', relocate to Islamabad - jurisdictional error established - writs of certiorari and mandamus issued. FJV18 |
Source: https://benchmarkinc.com.au/web/
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