XAD (by her Litigation Guardian XAE) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 495

XAD (by her Litigation Guardian XAE) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 495

The July 2017 Determination was concerned with the validity of visa applications and, properly construed in its statutory context and by reference to its purpose, required its criteria to be assessed when the child lodged the visa application, not as at 26 July 2017; because the applicant did not satisfy the criteria on 12 September 2019, her visa application was invalid. However, the Minister for Immigration made a personal procedural decision in mid-May 2019 to consider exercising the s 46A(2) power in respect of the applicant by requesting a full brief including the option of lifting applicable bars to permit protection visa applications. The August 2019 assessment was referable to...

Jurisdiction
Australia
Judgment Date
17 April 2020
Procedural Posture
Migration Proceeding Concerning Protection Visa Bar Under S 46 a of the Migration Act 1958 (cth) and Procedural Fairness in a Protection Obligations Assessment / Final Hearing After Transfer From the Federal Circuit Court of Australia; Reasons Delivered With Proposed Final Orders and Costs to Be Settled
Outcome
The applicant's first contention was rejected; the applicant's second contention was established; the Court indicated that a declaration should be made that the August 2019 assessment failed to observe procedural fairness, with final orders and costs to be settled.
Legal Topics
['protection Visa' 'safe Haven Enterprise Visa' 'unauthorised Maritime Arrival' 'section 46 a Bar Lift' 'ministerial Intervention' 'construction of Ministerial Determination' 'statutory Basis for Departmental Assessment' 'non Refoulement Obligations']
['migration Law' 'administrative Law' 'procedural Fairness'] ['protection Visa' 'safe Haven Enterprise Visa' 'unauthorised Maritime Arrival' 'section 46 a Bar Lift' 'ministerial Intervention' 'construction of Ministerial Determination' 'statutory Basis for Departmental Assessment' 'non Refoulement Obligations']

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Procedural Posture

Migration Proceeding Concerning Protection Visa Bar Under S 46 a of the Migration Act 1958 (cth) and Procedural Fairness in a Protection Obligations Assessment / Final Hearing After Transfer From the Federal Circuit Court of Australia; Reasons Delivered With Proposed Final Orders and Costs to Be Settled

Legal Issues

  1. 1 ["Whether the 26 July 2017 determination under s 46A(2) applied to the applicant's 12 September 2019 Safe Haven Enterprise visa application so that it was a valid application." 'Whether the criteria in the July 2017 Determination were to be assessed as at the date of the determination or as at the time of the visa application.' 'Whether the Minister for Immigration or the Minister for Home Affairs made a personal procedural decision to consider exercising the s 46A(2) power in respect of the applicant.' 'Whether the August 2019 protection obligations assessment had a statutory basis.' 'Whether procedural fairness applied to the August 2019 assessment and, if so, whether it was afforded.']

Ratio Decidendi

The July 2017 Determination was concerned with the validity of visa applications and, properly construed in its statutory context and by reference to its purpose, required its criteria to be assessed when the child lodged the visa application, not as at 26 July 2017; because the applicant did not satisfy the criteria on 12 September 2019, her visa application was invalid. However, the Minister for Immigration made a personal procedural decision in mid-May 2019 to consider exercising the s 46A(2) power in respect of the applicant by requesting a full brief including the option of lifting applicable bars to permit protection visa applications. The August 2019 assessment was referable to...

Court Disposition

The applicant's first contention was rejected; the applicant's second contention was established; the Court indicated that a declaration should be made that the August 2019 assessment failed to observe procedural fairness, with final orders and costs to be settled.

Orders

  • ['Within seven days, the parties provide any agreed minute of proposed orders to give effect to these reasons and in relation to costs.' 'If the parties cannot agree on such orders, within 14 days each party file and serve a minute of proposed orders to give effect to these reasons and in relation to costs, together...