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Federal Court Summaries: Migration Law - 10 Feb 2022
| XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6 Federal Court of Australia Full Court Rares, Yates and Snaden JJ Migration law - visa - cancellation - character grounds - criminal offending - prior cancellation under s501(3A) of Act - earlier decision by Delegate of Minister under s501CA(4)(b) of Migration Act 1958 (Cth) to revoke cancellation - later attempt to effect cancellation a second time under s501(3A) of the Act when read with s33(1) of the Acts Interpretation Act 1901 (Cth) - cancellation by reference to same offending - not permissible - "duty cannot be exercised more than once in respect of the same failure to pass the character test in s501(3A)(a)" - jurisdiction and powers of Delegate, Minister and Tribunal - principle in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd - appeal stood over for further orders. XJLR |
| Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 38 Federal Court of Australia Middleton J Migration law - visas - application to add dependent children to a Contributory Parent visa application - whether Minister had made an earlier determination that the children were validly added - whether Minister erred in later departing from earlier determination - Judge Egan, of Federal Circuit Court of Australia, dismissed application for judicial review - primary judge erred in not finding earlier determination - later determination without power - reg 2.08A(1)(a)-(da) does not require Minister to be satisfied that children are indeed dependents - regulation contains objective criteria including provision of written claim of dependent status by primary applicants - dependent status to be determined at merits stage under Sch 2 of Regulations - appeal allowed. Pham |
| CHVS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 34 Federal Court of Australia Kerr J Migration Law - cancellation - decision by Tribunal that no jurisdiction - protection visa - second decision by Tribunal that no jurisdiction - extension of time sought for judicial review of both decisions - judicial review ultimately pressed with respect to first decision - Tribunal without jurisdiction on different basis from that given - Notification earlier given pursuant to s501CA(3)(b) of the Migration Act 1958 (Cth) invalid - requirements of reg 2.52(2)(b) of the Migration Regulations - retroactive effect of more recent Full Federal Court decisions - significance of Minister seeking special leave to appeal - application dismissed. CHVS |
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"duty cannot be exercised more than once in respect of the same failure to pass the character test in s501(3A)(a)"
Department of Immigration keep using old records over and over against people!
People and also many lawyers aren’t aware of that and department taking advantage of this!