MIGRATION - appeal from Federal Circuit Court of Australia - fast track reviewable decision of the Immigration Assessment Authority - where appellant claimed to fear harm due to his membership of the Tamil United Liberation Front (TULF) party - where Authority found as a fact that the appellant had stated that he was unaware of the TULF party's history - where the appellant made no statement to this effect - whether Authority's finding was a critical finding made without probative evidence giving rise to jurisdictional error
MIGRATION - whether Authority's finding that the appellant had failed to demonstrate sufficient knowledge of the TULF party's history from 1976 to 2001 was arbitrary and formed on the basis of illogical reasoning - where appellant had not been fairly tested on the TULF party's history - where Authority did not consider why a person in the appellant's position would be expected to know the historical events identified, or why the appellant should have demonstrated knowledge of them without having been asked about them - where Authority's finding of insufficient knowledge was based on the incorrect finding of fact that the appellant stated he was unaware of the TULF party's history
MIGRATON - whether adverse credibility finding affected by jurisdictional error in circumstances where the Authority had: (1) erred in finding that the appellant had stated he was unaware of the party's history; and (2) adopted illogical reasoning when considering whether the appellant had demonstrated sufficient knowledge of the TULF party's history from 1976 to 2001
BWC16 v Minister for Home Affairs [2018] FCA 1375
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ELX17 v Minister for Immigration and Border Protection [2018] FCA 1372
MIGRATION where the Immigration Assessment Authority (IAA) decided not to grant the appellant a protection visa on the ground he could relocate to Kabul where IAA accepted that there was a real risk of significant harm to Hazaras travelling between Kabul and the appellants home district where his family lived whether the IAA failed to consider the claim that the appellant or his family would travel to see each other as an impediment to his relocation to Kabul in considering his complementary protection claim discussion of principles for determining the reasonableness of relocating and relevance of principles developed in the context of Refugee Convention claims to claims for complementary protection appeal allowed
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ETD17 v Minister for Immigration and Border Protection [2018] FCA 1373
MIGRATION - application for an extension of time and leave to appeal from Federal Circuit Court decision refusing to reinstate proceedings for judicial review dismissed for non-appearance - whether proposed grounds of judicial review of Administrative Appeal Tribunal decision had any reasonable prospects of success -alleged breach of procedural fairness by reason of the Tribunal's failure to arrange services of an interpreter - where no interpreter requested by applicant - observations on the duty on decision-makers to assess whether an interpreter is required notwithstanding the person's own assessment of her or his competency in English - application dismissed
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Hay v Minister for Home Affairs [2018] FCAFC 149
MIGRATION - appeal from decision of primary judge upholding decision not to revoke the cancellation of a visa under s 501(3A) of the Migration Act 1958 (Cth) - whether Minister's decision was affected by jurisdictional error - whether appellant denied procedural fairness by failure to consider a substantial argument, claim or submission made to the Minister - no jurisdictional error - appeal dismissed
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DAF18 v Minister for Home Affairs [2018] FCA 1367
MIGRATION - judicial review - whether Minister's decision not to revoke cancellation decision pursuant to Migration Act 1958 (Cth) s 501CA(4) affected by jurisdictional error by failing to take into account relevant considerations - where applicant's visa cancelled on character grounds under s 501(3A)
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EHW18 v Minister for Home Affairs [2018] FCA 1350
PRACTICE AND PROCEDURE - application for interlocutory injunction requiring the provision to the applicant of urgent medical treatment - duty of care allegedly owed by respondents to an applicant brought to Papua New Guinea under the Migration Act 1958 (Cth) - principles relevant to the grant of an interlocutory injunction - whether sufficient likelihood of success to justify grant - where the balance of convenience lies - injunction granted to require the respondents to transfer applicant to a location in Australia where he can be provided with urgent medical treatment
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BIJ16 v Minister for Immigration and Border Protection [2018] FCA 1380
MIGRATION - appeal from decision of Federal Circuit Court who upheld decision of Tribunal - whether Tribunal failed to assess claim cumulatively - where Tribunal's reasons state expressly that is considered all aspects of appellant's claim cumulatively - appeal dismissed
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Candemir v Minister for Home Affairs [2018] FCA 1360
MIGRATION - application for review of Minister's decision to cancel applicant's visa pursuant to s 501BA of the Migration Act 1958 (Cth) - whether Minister failed to consider relevant issues - no legal obligation on Minister to consider issues raised - whether Minister failed to treat best interests of children as primary consideration - ground meritless, Minister expressly taking best interests of "minor children" into account and there being no obligation to treat best interests of "dependent children" as primary consideration - whether Minister exercised power for improper purpose - no error in Minister using s 501BA power to set aside Administrative Appeals Tribunal decision where power expressly contemplates this - application dismissed
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AXH17 v Minister for Immigration and Border Protection [2018] FCA 1362
MIGRATION - appeal from orders of the Federal Circuit Court of Australia dismissing the appellant's application for judicial review - where Immigration Assessment Authority (Authority) affirmed the decision of a delegate not to grant a protection visa - whether the Authority failed to take into account the applicant's past experience of persecution - whether the Authority's reasoning and decision is unreasonable - appeal dismissed.
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BFL16 v Minister for Immigration and Border Protection [2018] FCA 1356
MIGRATION - appeal from decision of Federal Circuit Court of Australia dismissing application for review of Administrative Appeals Tribunal decision to affirm decision to deny appellant protection visa - whether to grant leave to rely on grounds not raised before FCCA - where grounds meritless, identifying no error on part of FCCA or Tribunal - leave refused - appeal dismissed
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DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353
MIGRATION - whether Federal Circuit Court of Australia ("FCCA") judge erred in dismissing application for review of Immigration Assessment Authority's decision to refuse appellant protection visa - whether no evidence to support Authority's finding that otherwise impecunious appellant could obtain financial assistance from mother to fund internal relocation in Sri Lanka - where Authority and FCCA judge's reasoning based on unfounded assumption that the appellant's mother was able and willing to provide her home as collateral, and erroneous interpretation of appellant's statements at entry interview - appeal allowed
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DCL17 v Minister for Immigration and Border Protection [2018] FCA 1361
MIGRATION - appeal from orders of the Federal Circuit Court of Australia dismissing the appellant's application for judicial review - where Immigration Assessment Authority (Authority) affirmed the decision of a delegate not to grant a protection visa - whether the Authority misapplied the test in s 5J(3) of the Migration Act 1958 (Cth) (Act), misapplied the real chance test in s 5J(1)(b) of the Act and/or failed to consider an integer of the appellant's claim - whether the primary judge erred in dismissing these grounds of review - appeal dismissed.
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BJA17 v Minister for Immigration and Border Protection [2018] FCA 1355
MIGRATION - appeal from Federal Circuit Court of Australia decision to dismiss application for review of decision of Immigration Assessment Authority to deny appellant visa - no appellable error identified - appeal dismissed
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CVN16 v Minister for Immigration and Border Protection [2018] FCA 1371
MIGRATION - appeal from decision of Federal Circuit Court of Australia dismissing application for judicial review of decision of Immigration Assessment Authority to refuse protection visa - where no appearance at hearing - where appellant no longer in Australia
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DOD16 v Minister for Immigration and Border Protection [2018] FCA 1359
MIGRATION - appeal from decision of Federal Circuit Court of Australia dismissing application for judicial review of Immigration Assessment Authority decision affirming delegate's refusal to grant protection visa - where alleged error by Immigration Assessment Authority in failing to differentiate position of appellant from that of his cousins in assessing risk of harm - where reasons indicate differences were taken into account - whether matters considered cumulatively by Immigration Assessment Authority - whether ex tempore reasons of Federal Circuit Court judge revealed sufficient consideration - appeal dismissed
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CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150
MIGRATION - protection visa - appeal from a decision of the Federal Circuit Court to dismiss application for judicial review of a decision of the Immigration Assessment Authority (Authority) - whether Authority misconstrued the test for determining the reasonableness of the appellant relocating - consideration of correct approach to determining reasonableness of relocation under the Act - whether primary Judge erred in finding that the Authority had considered all integers of the appellant's claims - whether finding in relation to a specific claim can be subsumed into other findings
MIGRATION - appeal from Federal Circuit Court - whether primary Judge failed to give adequate reasons - whether matter should be remitted to the Federal Circuit Court - where parties made detailed submissions in the appeal - where remittal would be futile - costs implications
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Anderson on behalf of the Warrabal People v State of Queensland [2018] FCA 1365
NATIVE TITLE - whether applicant should be granted leave to discontinue native title determination application - where discontinuance sought because view taken by applicant that claim fatally flawed - whether disruptions could be caused to related matters if claim discontinued and a new claim made - whether relevant that applicant failed to give undertaking that native title claim group would not file a further claim - whether there must be evidence of consultation with the claim group - leave to discontinue granted
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Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369
NATIVE TITLE - application for joinder as respondent to a native title determination application - where applicant was previously a respondent in the proceedings - where the applicant seeks to rejoin the proceedings - no satisfactory explanation for conduct - whether there is potential prejudice and disruption to other parties - interests of applicant for joinder
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Nguyen v Minister for Immigration and Border Protection [2018] FCA 1374
MIGRATION - application for partner visa - appeal from Federal Circuit Court - whether failure by Tribunal to consider two statutory declarations amounted to jurisdictional error - mandatory requirement under reg 1.15A(3)(c) of the Migration Regulations 1994 (Cth) for Tribunal to consider opinions of friends and acquaintances - whether the Tribunal had discharged the obligation to "consider" matters in reg 1.15A(3) - appeal allowed.
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ADK17 v Minister for Immigration and Border Protection [2018] FCA 1376
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