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Federal Court cases - Migration Law - 4 September 2020
| Hassan v Minister for Immigration & Anor [2020] FCCA 2385 Federal Circuit Court of Australia Judge Baird Migration law - applicant sought Partner (Temporary) (Class UK) visa under s65 Migration Act 1958 (Cth) - Minister's delegate refused to grant visa - applicant at date of application did not satisfy criteria 3001,3003 & 3004, Schedule 3 Migration Regulations 1994 (Cth (Migration Regulations) - Administrative Appeals Tribunal was not satisfied there were “compelling reasons” not to require applicant to apply for visa 'within 28 days of his last substantive visa' - Administrative Appeals Tribunal affirmed delegate's decision - applicant sought judicial review - whether Tribunal erroneously took irrelevant consideration into account - whether "genuineness question" concerning applicant's relationship with 'sponsoring partner' was irrelevant to whether 'Sch 3 criterion' should be waived - whether Tribunal erred by restricting its consideration of "genuineness question" to 'particular point in time' - whether Tribunal's consideration of "genuineness question" was material to its conclusion - finding of 'ulterior motive' - whether Tribunal erroneously failed to determine whether ulterior motive lapsed and relationship had matured into 'genuine and meaningful attachment' - subclass 820, Sch 2 Migration Regulations - Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (Waensila) - held: Tribunal prevented by Waensila from restricting its consideration of "genuineness question" to particular point in time - jurisdictional error established - judicial review application upheld. Hassan |
| AZC20 v Minister for Immigration & Anor [2020] FCCA 2317 Federal Circuit Court of Australia Judge Blake Migration law - apprehended bias - Minister's delegate refused to grant applicant a Temporary Protection (Class XD) (Subclass 785) visa - Immigration Assessment Authority affirmed delegate's decision - whether Authority 'acted unreasonably' by failure to exercise, or to consider exercising, Authority's 'power to get new information under' s473DC(3) Migration Act 1958 (Cth) (Migration Act) - whether Secretary provided Authority with material 'irrelevant and prejudicial' to applicant - whether Authority asked 'wrong question' or based decision on 'irrational finding' - whether failure by Authority 'to carry out a careful and balanced consideration of' claims against 'statutory criteria' - CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 - held: apprehended bias established - judicial review application upheld. AZC20 |
| DST18 v Minister for Immigration & Anor [2020] FCCA 1813 Federal Circuit Court of Australia Judge Driver Migration law - Minister's delegate refused to grant applicant a Safe Haven Enterprise Visa (SHEV) - Authority affirmed delegate's decision - whether Authority 'misapprehended or overlooked important evidence' by applicant - "exceptional circumstances" - "new information" - whether Authority's application of s473DD Migration Act 1958 (Cth) (Migration Act) miscarried - whether erroneous 'failure to consider whether' applicant satisfied s36(2)(a) Migration Act - whether 'translation error' - whether translation error resulting in 'jurisdictional error' - whether 'illogical or irrational reasoning' resulting in jurisdictional error - held: Authority 'misapprehended or overlooked important evidence' by applicant - application of s473DD Migration Act miscarried - judicial review application upheld. DST18 |
Source: Benchmark
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