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Federal Court decisions - Migration Law - 10 September 2020

Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32
High Court of Australia
Kiefel CJ; Gageler, Nettle, Gordon & Edelman JJ
Migration law - respondent refused to revoke cancellation of appellant's Class BB Subclass 155 Five Year Resident Return visa - appellant granted special leave to appeal - appellant contended Minister erroneously failed to consider whether 'non-refoulement obligations' owed to appellant - whether material before respondent raised issue whether Australia owed non-refoulement obligations concerning appellant and, if issue was raised, whether respondent deferred issue's consideration on basis any non-refoulment obligations 'could be considered if' appellant applied for protection visa - whether respondent 'was required to consider Australia's non-refoulement obligations' - whether appellant claimed fear of 'persecution or serious harm' - whether non-refoulment obligations 'a mandatory relevant consideration' under s501CA(4) Migration Act 1958 (Cth) - held: issue whether Australia owed non-refoulment obligations not raised - non-refoulment obligations not a mandatory relevant consideration - appeal dismissed.
Applicant S270/2019
Mokhlis v Minister for Home Affairs [2020] HCA 30
High Court of Australia
Edelman J
Migration law - plaintiff transferred to Australia from Manus Island to receive 'medical treatment' under s198C(2) Migration Act 1958 (Cth) (Migration Act) - plaintiff was 'unlawful non-citizen' under s14(1) Migration Act - plaintiff detained in immigration detention - defendants did not consider whether to exercise discretion to make 'residence determination' - plaintiff claimed he was suffering 'severe mental and physical harm' due to detention and that 'continued detention' was breach of duty of care by defendants - plaintiff sought 'range of remedies' preventing 'ongoing detention' - whether plaintiff's application hopeless - whether Court could remit matter to Federal Circuit Court - 'jurisdictional requirements' - "migration decision" - whether appropriate to remit matter - s44(1) Judiciary Act 1903 (Cth) - s75(v) Constitution - s476(1) Migration Act - Kazemi v Minister for Home Affairs [2020] HCATrans 124 - held: proceeding remitted to Federal Circuit Court of Australia under s44(1) Judiciary Act 1903 (Cth).
Guclukol v Minister for Home Affairs [2020] FCAFC 148
Full Court of the Federal Court of Australia
Katzmann, O'Callaghan & Derrington JJ
Migration law - Minister cancelled appellant's visa under s501(3A) Migration Act 1958 (Cth) (Migration Act) on basis of appellant's failure to pass 'character test' in s501(6) Migration Act ('cancellation decision') - appellant sought cancellation decision's revocation - Minister not satisfied 'his power to revoke' cancellation decision enlivened - Snaden J of Federal Court of Australia dismissed application for review of refusal to revoke cancellation decision - appellant appealed - '"no evidence" ground' - whether 'irrationality or legal unreasonableness' - whether 'failure to comprehend rehabilitation' - whether failure to understand and address submission - whether 'failure to take account of evidence' - held: appeal dismissed.


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