the blog of Sentry Law

‘Removed’ does not mean ‘removed’ after all: Moorcroft v Minister for Immigration… [2020] FCA 382

On Monday this week, the Federal Court of Australia handed down a decision allowing our client’s appeal of the FCCA’s and, today, we were notified that our client has been granted a Special Category (subclass 444) Visa, ending an over two-year ordeal for our client (who ended up spending over six months in immigration detention as a result). Below is the evidence (if you don’t believe us).

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What is migration law, really? An inadequate exploration of a complex question.

This is going to be step sideways from my typical articles discussing the practicalities of migration law in Australia. Instead, I’m going to attempt to answer a very broad and theoretical question—what is migration law, really? I feel that if I am going to hold myself out as focusing in a particular area of law, I should be able to give a relatively logical and comprehensive answer to what exactly that area of law is.

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So you beat visa cancellation under s 501? Get a new visa ASAP to avoid the risk of cancellation by the Minister under s 501A(2)!

Even if you receive a positive decision from a Ministerial delegate or the AAT under s 501 of the Migration Act, you remain at risk of having your visa cancelled personally by the Minister under s 501A(2).

However, getting a new visa before the Minister has the chance to make a decision under s 501A(2) may limit your risk of future cancellation.

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Permanent by nature, but not by name: should Special Category Visa holders be subject to onshore cancellation under s 116 of the Migration Act?

As we’ve previously addressed at length, New Zealand citizens hold somewhat of a peculiar position within Australia’s system of migration. New Zealand citizens who have lived in Australia for decades can have their Special Category Visas cancelled under s 116(1)(e) of the Migration Act 1958 while they are in Australia, a risk that permanent visa holders are not exposed to.

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Billy, don’t punch Tom (but Tom, if you get punched by Billy you get no ice cream): problems with attaching legal consequences to unlawful actions

In an earlier blog we reflected on a decision of the Federal Circuit Court of Australia that found that an unlawful removal from Australia would carry the same legal consequences as a lawful removal from Australia. Today our question is this: Should Parliament be in the business of giving legal effect to unlawful actions of the executive arm of government?

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Removed does not mean ‘lawfully removed’: unlawful government actions still have significant legal consequences for non-citizens

A recent decision by Judge Vasta of the Federal Circuit Court of Australia indicates that the consequences of removal for a non-citizen are the same whether or not the removal was lawful. This decision has very significant implications for non-citizens who have been removed from Australia, or who are facing removal from Australia, despite having pending proceedings for judicial review before a Court.

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Power and discretion: understanding administrative decisions in the migration law context

Just because the Minister responsible for administering the Migration Act 1958 has the power to cancel a non-citizen’s visa doesn’t mean that the Minister (or their delegate) will cancel that person’s visa. One of the common misconceptions about visa cancellation law in Australia is that the Minister will always cancel a visa if they have the power to do so. This is generally not the case.

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