Migration Law Updates

Federal Court: Section 91R of the Migration Act 1958 (Cth), which is now repealed but still operative in some legacy cases, qualified some aspects of Article 1A(2) of the Refugees Convention. In WZAPN, the High Court held that "whether a risk to loss of liberty constitutes 'serious harm' for the purposes of s 91R(1)(b) requires a qualitative judgment". Here, the AAT found that an isolated abduction incident did not constitute a real chance of serious harm. Was that a non-qualitative finding, which thus misinterpreted s 91R?

Federal Court: Minister was considering whether to cancel the Applicant's visa under s 501(2). Applicant stated that "there was targeted violence [in South Sudan] against the Nuer ethnic community of which the applicant is a member, including killings, abductions, unlawful detentions, deprivation of liberty, rape and sexual violence". Minister accepted that the Applicant "would face hardship arising from famine and civil war were he to return to South Sudan". Did the Minister engage with the Applicant's representations?

Federal Court (Full Court): The Appellant claimed fear of harm on the basis of: his ethnicity & religion; and non-refoulement obligations. Was the former type of harm subsumed by the latter on the basis that the latter "could not have been any less" than the former? With respect, the FCAFC echoed once again the writer's views expressed in several articles that the materiality test is not binary: the question is whether, had the error not been made, it could have tipped the scales in favour of an applicant. Further, in the absence of minor children in Australia related to an applicant, can that factor weigh against that applicant?