Federal Court (Full Court). "In the context of an application for a protection visa, the decision-maker’s task is to respond to a “substantial, clearly articulated argument relying upon established facts” including any claim that clearly emerged from the materials". Does that apply to s 501 visa refusals? In application for subclass 201 visa, Appellant argued he and his "family" (i.e. parents and siblings) had humanitarian claims. He then married, had a child and notified DHA of that. Can it be said that, "once the marriage and the birth were notified..., there could be no proper basis for the Minister to proceed on the basis that the risk of harm to family members referred to in the earlier materials was not also asserted to be a risk to which the appellant’s wife and child"? Is subclass 201 a protection visa, with the result that, according to BAL19, s 501 should not have applied?
The questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: "In the context of an application for a protection visa, the decision-maker’s task is to respond to a “substantial, clearly articulated argument relying upon established facts” including any claim that clearly emerged from the materials". Does the same principle apply to the power to refuse a visa under s 501 of the Migration Act 1958 (Cth)?
Question 2: Can it be said that, "once the marriage and the birth were notified to the Minister, there could be no proper basis for the Minister to proceed on the basis that the risk of harm to family members referred to in the earlier materials was not also asserted to be a risk to which the appellant’s wife and child"?
Question 3: Is subclass 201 a protection visa, with the result that, according to BAL19, s 501 should not have applied?
The FCAFC answered those questions as follows: