Migration Law Updates

Federal Court. Applicant's visa was cancelled under s 501(3A). Delegate refused to revoke cancellation under s 501CA(4). AAT: found it had jurisdiction to review delegate's decision; erroneously found revocation request had not been made by deadline; thus, found that neither AAT nor delegate had power to revoke; nonetheless found that, had it been made by deadline, it would have affirmed delegate's decision, based on its opinion that there was not "another reason" to revoke cancellation; set aside non-revocation decision; and remitted matter to Minister with a direction that the cancellation decision not be set aside. Was AAT's error not jurisdictional, given its opinion that there was not "another reason"?

High Court. Plaintiff was born in what is now Malta in 1945, as a British subject. He then entered Australia in 1948 and became a UK citizen in 1949, retaining the status of a British subject. He held an absorbed person visa since 1994, until that visa was cancelled. He was never naturalised Australian and his parents were not Australian citizens. Can it be said that, because the Plaintiff had the status of a British subject when he arrived in Australia, he could not then have been conceived of as an "alien", with the result that he thereby acquired the status of a non-alien and therefore that he remains outside the reach of s 51(xix) of the Constitution?

Federal Court (Full Court). Does para 14.1(2) of Direction 79 require decision-makers to take account of non-refoulement obligations? If not, might those obligations be required to be considered nevertheless for other reasons, such as because an applicant has raised those obligations? Since the introduction of s 197C, is indefinitely holding a person in detention for no lawful purpose and not refouling the person a possible legal outcome? If so, is the last sentence of para 14.1(6) incorrect to the extent it suggests otherwise? Was AAT obliged by paragraph 14.1(2) to proceed on the basis that refoulement was not a possible outcome?