Friday, 1 November 2019

Weekly Immigration Law ReviewA Weekly Bulletin listing Decisions

of Superior Courts of Australia covering immigration

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Executive Summary (1 minute read)

Minister for Home Affairs v Omar (FCAFC) - migration law - refusal to revoke mandatorycancellation of partner visa - failure to consider matters respondent raised as representations -appeal dismissed

FYBR v Minister for Home Affairs (FCAFC) - migration law - refusal to grant Safe Haven(Enterprise) Visa due to failure to pass “character test” - no error in construction or applicationof 'cl 11.3(1) of Direction No 65' - appeal dismissed

CCB16 v Minister for Immigration, Citizenship, Migrant Services and MulticulturalAffairs (FCAFC) - migration law - refusal to grant protection visas - failure to discloseNotification - alternative basis for decision - appeal dismissed

JNMK v Minister for Home Affairs (FCA) - migration law - refusal to grant Partner (Migrant)(Class BC) visa - erroneous failure to consider effect on applicant's child of separation fromapplicant - application allowed

Summaries With Link (Five Minute Read)

Minister for Home Affairs v Omar [2019] FCAFC 188Full Court of the Federal Court of AustraliaAllsop CJ; Bromberg, Robertson, Griffiths & Perry JJMigration law - respondent held partner visa - Assistant Minister, under s501CA(4) Migration Act

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1958 (Cth) (Migration Act), declined to revoke partner visa's mandatory cancellation - primaryjudge set Assistant Minister's decision aside - whether Assistant Minister erred by 'deferringconsideration of any non-refoulement obligations' - whether non-refoulement obligations were'mandatory relevant considerations' - whether decision in Ibrahim v Minister for Home Affairs[2019] FCAFC 89 'plainly wrong' - whether 'effect of' BCR16 v Minister for Immigration andBorder Protection [2017] FCAFC 96 reversed by Direction No 75 - whether Assistant Ministererroneously failed to consider matters respondent raised as representations under s501CA(3)Migration Act - held: Assistant Minister failed to consider matters respondent raised asrepresentations thus failed to carry out 'relevant statutory function' - appeal dismissed.Minister for Home Affairs[From Benchmark Friday, 1 November 2019]

FYBR v Minister for Home Affairs [2019] FCAFC 185Full Court of the Federal Court of AustraliaFlick, Charlesworth & Stewart JJMigration law - Minister's delegate refused to grant appellant a Safe Haven (Enterprise) Visa,finding appellant failed to pass “character test” under s501(6)(e) Migration Act 1958 (Cth)(Migration Act) - Administrative Appeals Tribunal dismissed appeal - judicial review applicationdismissed - appeal concerned 'correct construction and application' of cl11.3(1) of Direction No65' - whether erroneous finding that cl11.3 'operated as a deeming provision' - whether cl11.3expressed an expectation 'in every case' against granting of a visa - whether Tribunal erred inconsideration of Australian community's expectations - held: appeal dismissed.FYBR[From Benchmark Friday, 1 November 2019]

CCB16 v Minister for Immigration, Citizenship, Migrant Services and MulticulturalAffairs [2019] FCAFC 183Full Court of the Federal Court of AustraliaBesanko, Steward & Abraham JJMigration law - first respondent's delegate refused to grant appellants protection visas -Administrative Appeals Tribunal affirmed delegate's decision - Federal Circuit Court dismissedjudicial review application - appellants appealed - whether failure by Tribunal to disclose theexistence of a Notification under s438(1)(b) Migration Act 1958 (Cth) was material in sense in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 - whether Tribunal's'relocation finding' provided 'independent basis' for Tribunal's decision - whether Tribunal erredin weight given to evidence - whether denial of procedural fairness - held: appeal dismissed.CCB16[From Benchmark Friday, 1 November 2019]

JNMK v Minister for Home Affairs [2019] FCA 1758Federal Court of AustraliaJackson J

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Migration law - first respondent's delegate refused to grant applicant a Partner (Migrant) (ClassBC) visa, finding applicant failed to pass character test - Administrative Appeals Tribunalaffirmed delegate's decision - applicant sought extension of time to seek judicial review -whether review grounds 'at least arguable' - applicant challenged reasoning of Tribunalconcerning unborn child's interests and interests of 2 year old daughter (K) - applicant alsocontended Tribunal erred in proceeding on basis that time limit under s500(6L) Migration Act1958 (Cth) for making of its decision 'had started to run' - applicant contended that the time limitdid not start to run due to Department's non-compliance with s501G Migration Act - Direction 65- held: Tribunal erroneously failed consider effect on K of separation from applicant - applicationallowed.JNMK[From Benchmark Friday, 1 November 2019]

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From The Lotos-eatersBy: Alfred, Lord Tennyson "Courage!" he said, and pointed toward the land,"This mounting wave will roll us shoreward soon."In the afternoon they came unto a landIn which it seemed always afternoon.All round the coast the languid air did swoon,Breathing like one that hath a weary dream.Full-faced above the valley stood the moon;And like a downward smoke, the slender streamAlong the cliff to fall and pause and fall did seem. A land of streams! some, like a downward smoke,Slow-dropping veils of thinnest lawn, did go;And some thro' wavering lights and shadows broke,Rolling a slumbrous sheet of foam below.They saw the gleaming river seaward flowFrom the inner land: far off, three mountain-tops,Three silent pinnacles of aged snow,Stood sunset-flush'd: and, dew'd with showery drops,Up-clomb the shadowy pine above the woven copse. The charmed sunset linger'd low adownIn the red West: thro' mountain clefts the daleWas seen far inland, and the yellow downBorder'd with palm, and many a winding valeAnd meadow, set with slender galingale;A land where all things always seem'd the same!And round about the keel with faces pale,Dark faces pale against that rosy flame,The mild-eyed melancholy Lotos-eaters came. Branches they bore of that enchanted stem,Laden with flower and fruit, whereof they gaveTo each, but whoso did receive of them,And taste, to him the gushing of the waveFar far away did seem to mourn and raveOn alien shores; and if his fellow spake,His voice was thin, as voices from the grave;And deep-asleep he seem'd, yet all awake,And music in his ears his beating heart did make.

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https://en.wikipedia.org/wiki/Alfred,_Lord_Tennyson

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