XAD (by her litigation guardian XAE) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 12

XAD (by her litigation guardian XAE) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 12

The 26 July 2017 s 46A(2) determination was concerned with the validity of visa applications and its criteria, including criterion (c), were to be assessed when the child's visa application was made. Because the appellant's mother's protection visa application had been refused and finally determined by the time the appellant lodged her SHEV application, the determination did not lift the s 46A(1) bar for that application and the appeal failed. On the cross-appeal, the evidence supported the primary judge's inference that Minister Coleman had made a personal procedural decision to consider exercising s 46A(2), and the no-further-action notation did not establish that this consideration had...

Jurisdiction
Australia
Judgment Date
16 February 2021
Procedural Posture
Migration Judicial Review Appeal and Cross Appeal / Appeal From XAD (by Her Litigation Guardian Xae) V Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 495
Outcome
Appeal dismissed; cross-appeal dismissed; each party to bear their own costs.
Legal Topics
['unauthorised Maritime Arrivals' 'safe Haven Enterprise Visa' 'section 46 a Bar' 'ministerial Intervention' 'procedural Fairness' 'non Compellable Powers' 'protection Obligations Assessment']
['migration Law' 'administrative Law'] ['unauthorised Maritime Arrivals' 'safe Haven Enterprise Visa' 'section 46 a Bar' 'ministerial Intervention' 'procedural Fairness' 'non Compellable Powers' 'protection Obligations Assessment']

Case Brief

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Procedural Posture

Migration Judicial Review Appeal and Cross Appeal / Appeal From XAD (by Her Litigation Guardian Xae) V Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 495

Legal Issues

  1. 1 ["Whether the 26 July 2017 determination under s 46A(2) of the Migration Act 1958 (Cth) lifted the s 46A(1) bar for the appellant's SHEV application when her parent's protection visa application had been refused and finally determined by the time the appellant applied." 'Whether Minister Coleman had made a personal procedural decision to consider exercising the power under s 46A(2) to lift the bar in relation to the appellant.' "Whether any such procedural decision remained operative when a Departmental officer assessed the appellant's request in August 2019, so that procedural fairness was required." 'Whether returning the May 2019 submission to the Department to be finalised as no further action constituted a decision not to exercise the s 46A(2) power.']

Ratio Decidendi

The 26 July 2017 s 46A(2) determination was concerned with the validity of visa applications and its criteria, including criterion (c), were to be assessed when the child's visa application was made. Because the appellant's mother's protection visa application had been refused and finally determined by the time the appellant lodged her SHEV application, the determination did not lift the s 46A(1) bar for that application and the appeal failed. On the cross-appeal, the evidence supported the primary judge's inference that Minister Coleman had made a personal procedural decision to consider exercising s 46A(2), and the no-further-action notation did not establish that this consideration had...

Court Disposition

Appeal dismissed; cross-appeal dismissed; each party to bear their own costs.

Orders

  • ['The appeal is dismissed.' 'The cross-appeal is dismissed.' 'Each party is to bear their own costs.']