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Federal Court Cases - Migration Law - 17 September 2020
| BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151 Full Court of the Federal Court of Australia Allsop CJ; Collier & Colvin JJ Migration law - Minister's delegate refused to grant appellant a Safe Haven Enterprise (Class XE) Visa, finding Australia did not owe 'protection obligations' to appellant - Immigration Assessment Authority affirmed delegate's decision - Judge Kemp of Federal Circuit Court of Australia dismissed judicial review application - appellant contended that some factual findings of Authority 'were not open to it on the evidence' - whether 'failure to consider important evidence' in sense in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 - whether Authority erred concerning time at which appellant 'raised his scarring' - whether erroneous factual finding constituting jurisdictional error - whether legal unreasonableness - Minister for Immigration and Citizenship v Li [2013] HCA 18 - ss5H, 5J & 36 Migration Act 1958 (Cth) - held: no error by Authority - appeal dismissed. BHD18 |
| AJL20 v Commonwealth of Australia [2020] FCA 1305 Federal Court of Australia Bromberg J Migration law - constitutional law - false imprisonment - two proceedings - applicant claimed damages for false imprisonment by respondent - applicant sought that respondent be required 'to release him from detention' - applicant's visa had been cancelled under s501(2) Migration Act (Cth) (Migration Act) - protection visa under s195A Migration Act had been declined by Minister - whether steps by respondent demonstrated that removal of applicant from Australia had been 'undertaken or carried into effect as soon as reasonably practicable' - whether detention of applicant since 26/7/19 unlawful - no dispute that if detention unlawful, then false imprisonment, and liability, established - ss189, 196, 197C & 198 Migration Act 1958 (Cth) - 'constitutional limitations upon administrative detention' - - 'non‑refoulement obligations' - whether to make order in nature of 'writ of habeas corpus' - held: respondent had 'unlawfully detained' applicant since 26/7/19 - applicant to be released from detention by respondent forthwith. AJL20 |
| Wekerle v Department of Home Affairs [2020] FCA 1300 Federal Court of Australia Banks-Smith J Migration law - applicant's visa cancelled under s501(3A) Migration Act 1958 (Cth) - Minister's delegate refused to revoke visa's cancellation ('non-revocation decision') - Administrative Appeals Tribunal affirmed non-revocation decision - applicant sought extension of time to seek judicial review - delay - explanation for delay - prejudice - prospects of success - procedural fairness - interests of justice - consideration of matters at 'impressionistic level' - whether arguable applicant 'should have been provided with' DVD of 'police interview' - held: extension of time granted. Wekerle |
Source: Benchmark
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