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.
(Un)reasonable
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Family violence did not arise
Generally spouse visas are provisional for 2 years before they become permanent. This is to weed out the non-genuine or short term relationships. There is an exception to the 2 year rule if there is family violence. In Minister v Gupta [2022] FCAFC 51 the Full Court had to resolve an issue about the construction of 100.221(4) which provides inter alia: (a) the applicant first entered Australia...
Jurisdiction
Jurisdiction (the power to decide) is fundamental to all proceedings and applications. Sometimes, particularly in courts where power is limited by statute it can also become very complicated. The term "accrued" jurisdiction is often used without appreciating where the limits lie. In FJE20 v Minister for Home Affairs [2022] FCAFC 45 the applicant sought a number of injunctions (in relation to his...
Time in Notices
I am often surprised that there are so many cases about defective "statutory notices" and it really shows that any notice your client receives should be scrutinised to make sure it is compliant. In Lewis v Minister [2022] FCA 205 (another 501CA character cancellation matter) two invitations to make representations to revoke the cancellation were issued, some few weeks apart. The invitations were...