Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCA 615

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCA 615

A stay should be granted because the appeal grounds were clearly reasonably arguable, the subject matter of the appeal would be lost if the Minister had to determine the SHEV application without regard to s 501(1), the alleged disentitling conduct did not justify refusal, the appellants gave an undertaking as to damages, and expedition of the appeal reduced the prejudice to the respondent, notwithstanding the considerable weight given to his lost chance of leaving detention and residing with his mother before the appeal is determined.

Jurisdiction
Australia
Judgment Date
08 May 2020
Procedural Posture
Application for a Stay Pending Appeal to the Full Court of the Federal Court of Australia / Interlocutory Application for Stay and Expedition of Appeal
Outcome
Stay granted; appeal expedited; costs of the stay application to be costs in the appeal.
Legal Topics
['stay Pending Appeal' 'expedition of Appeal' 'protection Visa' 'safe Haven Enterprise Visa' 'migration Act S 501 Character Power' 'mandamus' 'immigration Detention']
['practice and Procedure' 'administrative and Constitutional Law and Human Rights' 'migration Law'] ['stay Pending Appeal' 'expedition of Appeal' 'protection Visa' 'safe Haven Enterprise Visa' 'migration Act S 501 Character Power' 'mandamus' 'immigration Detention']

Case Brief

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Procedural Posture

Application for a Stay Pending Appeal to the Full Court of the Federal Court of Australia / Interlocutory Application for Stay and Expedition of Appeal

Legal Issues

  1. 1 ['Whether paragraphs 2 and 3 of the orders made by Colvin J should be stayed until determination of the appeal or further order.' 'Whether the grounds of appeal concerning the availability of s 501(1) of the Migration Act 1958 (Cth) in respect of a protection visa were reasonably arguable.' 'Whether the subject matter of the appeal would be destroyed if a stay were not granted.' 'Whether prejudice to the respondent, including continued immigration detention and the lost chance of living with his mother, outweighed the reasons for a stay.' "Whether the appellants had engaged in disentitling conduct by not determining the respondent's visa application before seeking a stay." 'Whether the appeal should be expedited.']

Ratio Decidendi

A stay should be granted because the appeal grounds were clearly reasonably arguable, the subject matter of the appeal would be lost if the Minister had to determine the SHEV application without regard to s 501(1), the alleged disentitling conduct did not justify refusal, the appellants gave an undertaking as to damages, and expedition of the appeal reduced the prejudice to the respondent, notwithstanding the considerable weight given to his lost chance of leaving detention and residing with his mother before the appeal is determined.

Court Disposition

Stay granted; appeal expedited; costs of the stay application to be costs in the appeal.

Orders

  • ["The Court notes that the appellants give an undertaking to pay any damages occasioned by the stay in the event that the appellants' appeal is unsuccessful." 'Paragraphs 2 and 3 of the orders made by Colvin J in SAD 53 of 2020 on 30 April 2020 be stayed until the determination of the appeal or until further order...