Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
XAD (by her Litigation Guardian XAE) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 495 File number: VID 967 of 2019
Judge: MOSHINSKY J
Date of judgment: 17 April 2020
Catchwords: MIGRATION – protection visa – lifting the bar under s 46A of the Migration Act 1958 (Cth) – where the applicant was a two-year-old child who was born in Australia and fell within the definition of "unauthorised maritime arrival" – where the Minister for Immigration and Border Protection had, by a determination made on 26 July 2017, lifted the bar in respect of applications by certain unauthorised maritime arrivals who met three criteria – construction of the determination – whether the determination applied to a visa application by the applicant – where the applicant had requested that the power conferred by s 46A(2) be exercised – where an assessment of the applicant's protection claims was carried out by the Department of Home Affairs in August 2019 – whether either or both of the relevant Ministers had previously decided to consider exercising the power to lift the bar – whether the August 2019 assessment should be characterised as having a statutory basis – whether the rules of procedural fairness applied to the August 2019 assessment
Legislation: Migration Act 1958 (Cth), ss 5, 5AA, 35A, 46, 46A, 47, 48A, 48B, 65, 195A, 417
Cases cited: Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 CLM18 v Minister for Home Affairs (2019) 373 ALR 147 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 SZSSJ v Minister for Immigration and Border Protection (2015) 234 FCR 1
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