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Federal Court Decisions - Migration Law - 30 July 2020
| PQSM v Minister for Home Affairs [2020] FCAFC 125 Full Court of the Federal Court of Australia Mortimer, Banks-Smith & Jackson JJ Migration law - Minister's delegate, under s501CA(4) Migration Act 1958 (Cth) (Migration Act), refused to revoke cancellation of appellant's visa - Administrative Appeals Tribunal affirmed delegate's decision - Colvin J of Federal Court of Australian found Tribunal erroneously failed to consider 'relevant matter' of the 'impact of non‑revocation on the appellant's partner and two adult children, but that the mistake did not constitute a jurisdictional error - whether Colvin J misapplied 'standard of materiality' - ss499(1) & 499(2A) Migration Act - Direction 79 - 'standard of materiality' - whether primary judge erred in applying Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 - held (Mortimer J dissenting): appeal dismissed. PQSM |
| DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127 Full Court of the Federal Court of Australia Collier, Rangiah & Derrington JJ Migration law - Minister’s delegate refused to grant appellants protection visas - Immigration Assessment Authority affirmed delegate’s decision - appellants required extension of time under s477(2) Migration Act 1958 (Cth) (Migration Act) to commence ’judicial review proceedings’ - Judge Vasta of Federal Circuit Court refused extension of time - Greenwood J of Federal Court found Judge Vasta misapplied s477(2) by erring in approach to application of test in s477(2) Migration Act - however primary judge found the mistake had not resulted in “jurisdictional error" - whether Greenwood J erred by failure to determine Judge Vasta’s misapplication of s477(2) Migration invalidated refusal of extension of time - scope of examination of merits in exercise of discretion under s477(2) Migration Act - “a threshold assessment of merit” - application by Judge Vasta of ’higher test to the assessment of merits than was required’ - whether jurisdictional error - whether error material - whether ’concept of materiality applied to ’exercise of a power’ rather than ’disposition of a matter’ - - held: appeal allowed. DHX17 |
| Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 Federal Court of Australia Allsop CJ Migration law - Minister's delegate refused to grant first appellant a student visa - Administrative Appeals Tribunal affirmed delegate's decision - Judge Vasta of Federal Circuit Court dismissed judicial review application - whether erroneous failure to find decision of Tribunal 'involved legal unreasonableness' - whether erroneous failure to provide, on 'timely basis', 'settled written reasons' - comparison of terms of cl 500.212, Sch 2 Migration Regulations 1994 (Cth) (Regulations) with cl 572.22 & cl 572.223 Regulations - - whether misconstruction of cl 500.212 Regulations - “intends genuinely to stay in Australia temporarily” - 'evaluation in the chapeau' - 'genuine in intention as to length of stay and nothing else' - whether Tribunal 'asked wrong question' - Saini v Minister for Immigration and Border Protection [2016] FCA 858 - held: appeal allowed. Eros |
Source: Benchmark
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