Three Decisions That Reshape
Australian Migration Law

Background

The plaintiff in EGH19 was a refugee and stateless person who had been released from immigration detention following the High Court's 2023 decision in NZYQ — which held that indefinite immigration detention was unconstitutional. Shortly after NZYQ, the Albanese Government rushed through legislation permitting the imposition of curfew conditions and electronic ankle monitoring on those released.

In November 2024, the High Court struck those conditions down in YBFZ v Minister for Immigration [2024] HCA 40, holding they were punitive in nature and infringed Chapter III of the Constitution. The Government immediately amended the legislation in an attempt to reframe the basis for imposing the conditions — and applied them again to EGH19 and others.

What the Court Decided

The Court identified two critical concerns. First, conditions that significantly impact on a person's liberty and bodily integrity should, as a general principle, only be imposed by a court through processes that include fundamental procedural safeguards — rules of evidence and procedural fairness. The executive branch cannot impose what amounts to punishment without judicial oversight.

Second, the Minister had the power to impose the conditions without affording the affected person any procedural fairness — often relying on minimal evidence. The person then bore the onus of requesting that conditions be lifted, with no statutory time limit on the Minister's obligation to consider that request. In practice, people remained subject to constant surveillance for up to 12 months after visa grant.

The Ankle Bracelet — Why It Matters

The Court's description of the physical ankle monitoring device is notable for its specificity. The devices were described as neither small nor discreet, and observers would reasonably assume the wearer presented some kind of risk — despite this not being the case. The device required charging for at least 90 minutes twice daily, interfered with clothing choices, and imposed both physical and psychological burdens. Non-compliance carried imprisonment of up to five years.

Practical Implications for Practitioners

Background

The applicant in Buksh challenged a decision of the Federal Circuit Court which had upheld a Tribunal refusal of a visa application. The appeal proceeded before Bennett J in the Federal Court in late April 2026. The case is part of a consistent stream of migration appeals in which applicants seek to challenge Tribunal decisions on jurisdictional error grounds after failing at the primary decision and merits review stages.

Key Legal Issues

Migration appeals from the Federal Circuit Court to the Federal Court are confined to questions of law — the Federal Court cannot revisit factual findings or substitute its own view of the merits. The grounds available to an appellant are therefore narrow: jurisdictional error, denial of procedural fairness, breach of natural justice under s 57 of the Migration Act 1958, or error of law on the face of the record.

The Broader Appeal Landscape

Buksh is one of several migration appeals listed in the Federal Court in April 2026, reflecting the significant volume of visa refusal matters working through the judicial review pipeline. The courts have consistently emphasised that merits review — the proper arena for factual challenges — is the Administrative Review Tribunal (ART), not the Federal Court or Federal Circuit Court.

A recurring issue in these appeals is applicants raising grounds on appeal that were not argued before the primary judge. In Younes v Minister [2026] FCAFC 35 — decided in the same month — the Full Federal Court addressed this directly, considering whether leave should be granted to raise new grounds on appeal where the original grounds were not pressed below.

Practical Implications for Practitioners

Background

The appellant challenged a Federal Circuit Court decision dismissing judicial review of an Immigration Assessment Authority (IAA) decision affirming refusal of a Subclass 790 Safe Haven Enterprise Visa. Three grounds were raised on appeal, each of which was rejected by the Federal Court.

Ground 1: Apprehended Bias

The appellant argued that the primary judge had demonstrated apprehended bias through the questioning of counsel during the hearing. This ground required the Court to consider the well-established test: whether a fair-minded lay observer, knowing the circumstances, might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.

Grounds 2 and 3: IAA Country Information Obligations

The second and third grounds both related to the IAA's alleged failure to consider specific paragraphs (3.40 and 3.41) of a DFAT Country Information Report. The appellant argued this constituted jurisdictional error, and separately that the Secretary had failed to provide relevant material under s 473CB of the Migration Act 1958.

The Court declined to grant leave to raise a new ground of appeal relating to the country information issue — the ground had not been properly argued before the primary judge. This reflects the consistent approach of appellate courts to new grounds raised for the first time on appeal.

The Safe Haven Enterprise Visa — Context

The Subclass 790 Safe Haven Enterprise Visa (SHEV) was introduced to provide a pathway for certain protection visa applicants in regional areas. The IAA — rather than the ART — was established as the review body for fast track applicants, including those who arrived by boat as unauthorised maritime arrivals. The IAA's review powers are more limited than full merits review: it reviews on the papers without a hearing, and its discretion to consider new information is constrained by s 473DC and s 473DD of the Migration Act.

Practical Implications for Practitioners