Paul Cutler's Migration Case Law Blog
Section 48A Bar
Is there a section 48A bar arising from the following facts:
- The Applicant applied for a protection visa in 2013;
- The application was refused in 2014;
- In September 2017, the AAT affirmed the delegate’s decision;
- On 12 September 2017 (the day following the AAT decision) the Assistance Minister used the power in s417(1) to grant a three month visitor visa with a no further stay condition on it; and
- On 12 October 2017 the Applicant applied for a second protection visa.
That second application was found to be invalid on the basis that there was a section 48A bar which had not been waived. An application for judicial review was made in the Federal Circuit and Family Court of Australia where Judge Laing found that there was a s48A bar. The matter then went to the Full Federal Court (see Fel17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 153).
It was a 2:1 majority decision in the Full Court:
- In seven succinct paragraphs Justice Snaden found that: “There is nothing about the subject matter, scope or purpose of the Act that should require or suggest that the exercise of power under s 417(1) operates so as to revive the by-then-extinguished legal effect of the decision whose affirmation the Minister has seen fit to replace with something more favourable.”; and
- Unfortunately, Justices Halley and Abraham found that: “In short, s 48A of the Migration Act prohibits the making of a further protection visa application where one has already been made and refused. That is subject only to s 48B, where the Minister can personally exercise his power to consider another application if it is considered in the public interest to do so. That power was not exercised. The Assistant Minister substituting the Tribunal’s Decision and granting a different visa, a three month visitor visa, pursuant to s 417(1) of the Migration Act, does not mean that the appellant has no longer been refused a protection visa for the purposes of s 48A.”
Creative commons acknowledgement for the photograph.
Extension of time
The Court may grant an extension of time for filing a judicial review application under section 477(2) if it considers it is in the interests of justice to do so. This usually involves inter alia a "reasonably impressionistic" examination of the merits. In FKV17 v Minister for Home Affairs [2022] FCAFC 93 case management orders were made for the determination of the extension of time issue and...
Fact finding
Mr Mukiza was an African born Canadian citizen with serious mental health issues (as well as a criminal record which resulted in the cancellation of his visa). The controversy in this case was around what was referred to as “ the Rehabilitation Finding” (viz the AAT found that the standard of support for rehabilitation services in Canada was similar to Australia). At first instance Mukiza...
Double Dipping?
XXBN's partner visa was cancelled under 501CA Migration Act after a series of domestic violence incidents, breaches of ADVO's and ultimately several assault charges relating to his partner and her sister. The complication in the facts was that his partner (and her sister) had both given evidence that they had forgiven him. They also both provided statements in support of the cancellation being...
(Un)reasonable
It’s not controversial that if Applicants are unresponsive to the Minister’s requests for information a delegate can exercise the discretion (under s62 Migration Act) to refuse the visa. The recent single judge (Gordon J) High Court decision of Plaintiff S183 v Minister [2022] HCA 15 demonstrates that the discretion has to be exercised reasonably. Plaintiff S183 was a Turkish lady who feared...