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Federal Court Decisions - Migration Law - 30 September 2021

EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Full Court of the Federal Court of Australia
Yates, Griffiths & Moshinsky JJ
Migration law - delegate of Minister cancelled applicant's visa under s501(3A) Migration Act 1958 (Cth) (Migration Act) - applicant sought judicial review of delegate's refusal to revoke visa's cancellation - Minister submitted Administrative Appeals Tribunal lacked jurisdiction to conduct review on basis representations under s501CA(4) Migration Act were not received by 'correct deadline' - Tribunal found it lacked jurisdiction on basis representations 'had to be received by no later than' 28 days from date of applicant's receipt of 'second notification letter' - applicant sought relief - 'construction issue' - whether 'either or both' Minister for Immigration and Border Protection v EFX17 [2021] HCA 9 and Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 applied to second notification letter - whether Stewart was "plainly wrong" - whether construction by Full Court of "made" in Stewart erroneous - whether "clear" or "patent" error - whether "merely a difference of view as to meaning" - whether departure from requirements in s501CA(3) Migration Act - whether Pt 9.2 and s501CA(3) Migration Act invalid under s116 Constitution on basis they prohibited applicant from exercising Christian religion - whether applicant was not an alien for purposes of Migration Act - validity of regs 2.55 and 2.52 Migration Regulations 1994 (Cth) - procedural fairness - whether applicant 'not duly served with' second notification letter - held: Stewart was not "plainly wrong" - Court applied Stewart to second notification letter - second notification letter invalid - further amended originating application upheld.
EPL20
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Full Court of the Federal Court of Australia
Yates, Griffiths & Moshinsky JJ
Migration law - delegate of Minister, under s501CA(4) Migration Act 1958 (Cth) (Migration Act), refused to revoke cancellation of appellant's visa - Administrative Appeals Tribunal affirmed delegate's decision - Katzmann J, of Federal Court of Australia, dismissed judicial review application - appellant contended cancellation of visa invalid, or that appellant was not served with 'valid cancellation notice' - whether notice's invitation informing appellant concerning period within which representations were required to be made 'was consonant with reg 2.52' Migration Regulations 1994 (Cth) (Regulations) - effect of decision in Minister for Immigration and Border Protection v EFX17 [2021] HCA 9 'considered in light of' Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 - whether primary judge erroneously found reg 2.55 Regulations applied to notice of cancellation - whether appellant 'made representations' concerning revocation of cancellation decision in time prescribed by reg 2.52(2)(b) Regulations - held: Court applied Stewart to invitation in notice - invitation 'incorrectly fixed' time under reg 2.52(2)(b) Regulations - invitation not in accordance with 501CA(3) Migration Act - invitation was invalid - appeal allowed.
Sillars
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 166
Full Court of the Federal Court of Australia
McKerracher, Griffiths & Bromwich JJ
Migration law - delegate of Minister refused to revoke mandatory cancellation of appellant's visa under s501CA(4) Migration Act 1958 (Cth) - Administrative Appeals Tribunal affirmed delegate's decision - Kerr J, of Federal Court of Australia, dismissed judicial review application - whether to grant appellant leave to raise new appeal grounds - "no evidence" ground - challenge to fact-finding of Tribunal - whether Tribunal's decision 'illogical, irrational and/or legally unreasonable' - five 'strands' of claims alleging 'illogicality and unreasonableness' - held: leave granted to raise appeal ground challenging Tribunal's fact-finding - Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175 - held: appeal dismissed.
QYFM
AFD21 v Minister for Home Affairs [2021] FCAFC 167
Full Court of the Federal Court of Australia
Kenny, Kerr & Wheelahan JJ
Migration law - appellant's Class AH Subclass 101 Child (permanent) visa cancelled under s501(3A) Migration Act 1958 (Cth) (Migration Act) - Minister declined to revoke cancellation of visa under s501CA(4) Migration Act - Snaden J, of Federal Court of Australia, dismissed judicial review application - whether Minister, in determining whether there was "another reason" 'to revoke the cancellation decision', gave 'active intellectual consideration' to representations of appellant concerning risks to appellant's personal safety if he were returned to Burundi, including risk of being killed - whether non-refoulment obligations were raised 'as a mandatory consideration' by appellant's submissions - no dispute that if they were raised, Minister erred in dealing with them in manner amounting to jurisdictional error - held: Minister did not give active intellectual consideration to representations - non-refoulment obligations were raised - appeal allowed.
AFD21

Source: Benchmark

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