Case Law Updates

Federal Court. In Ibrahim, the FCAFC held that, although s 501BA(3) removed the obligation to provide natural justice, it did not prohibit it being provided. Unlike Ibrahim, the Minister here was aware he had the option of providing natural justice, but chose not to. Was that "choice" given to the Minister on the condition that it be exercised legally reasonably? Was the Minister required under s 501BA to consider the submissions made and evidence given by the Applicant to the Tribunal?

Federal Court. In Davis, the High Court held that, in the 2016 Ministerial Guidelines issued in relation to section 351 of the Migration Act 1958 (Cth), the factors that the Department was instructed to assess and balance operated as "an approximation of the public interest". Did the 2016 Ministerial instructions issued in relation to s 195A also operate as "an approximation of the public interest"?

Federal Court (Full Court). Is the question whether the applicant has a reasonable explanation for refusing or failing to comply with a request made under s 91W of the Migration Act 1958 (Cth) a matter for the Minister to determine? Is s 91W(3) otiose? Does the phrase “reasonable explanation” in s 91W(2) connote not only that the explanation is rational, but also that the explanation is credible?

High Court. The Tribunal found that both claimants were owed protection, and remitted the matters to the Department. Then, without deciding whether to grant them protection visas, the Department granted them other visas. As per NZYQ, removal from Australia was no longer a legitimate non-punitive purpose to keep them detained. Was the processing of their protection visa applications nevertheless a legitimate non-punitive purpose to keep them detained?

Federal Court. Once an act is made to detain a person under s 189 of the Migration Act 1958, is the continuation of that detention also an act under s 189? If so, is the continued detention of a person under s 189 a "migration decision", with the result that the FCA does not have original jurisdiction in an application for a writ in the nature of habeas corpus? If so, does the FCA have a residual original jurisdiction to determine whether a habeas corpus applicant is a person to whom s 189(1) can validly apply? Can 189(1) be applied by reference to a hypothetical officer? Was the Applicant "born in Australia" for the purposes of the Australian Citizenship Act 1948, despite being born in the Cook Islands? Was the Applicant an Aboriginal Australian? Were enrolment on the Commonwealth electoral roll and the issue of an Australian passport determinative of whether Applicant was a citizen?

Federal Court. Can it be said that, "by reason of s 426B(6) of the [Migration Act 1958 (Cth)], the obligation to provide an applicant with a statement describing the effect of ss 426A(1B) to (1F) is inextricably linked with the obligation to provide an applicant with a copy of the written statement of the decision made under s 426B(2)"?

Federal Court. In order for 'information' to enliven s 359A(1), is it "necessary that it should contain in its terms a ‘rejection, denial or undermining’ of an applicant’s claims to be entitled to the grant of the visa" and that "the claims [are] to be understood as the criteria for the visa being sought"? Can AAT Members be compelled to give evidence about their decisions? Is it necessarily legally unreasonable for a decision-maker to conclude that an artist who applied for a distinguished talent visa applicant should not be required to audition for a role?

Federal Court. Gleeson CJ and Gummow J held in Jia Legeng that an allegation of actual bias must be "distinctly made and clearly proved". Does the same principle apply to an allegation of apprehended bias? Is the IAA required to "give notice of its receipt of a reference of a fast track reviewable decision or state that it would review the decision within a certain period of time"? Is the IAA authorised to make a decision at any time after a decision has been referred to it?

Federal Court: Secretary must give IAA "any other material that ... is considered by the Secretary ... to be relevant to the review": s 473CB(1)(C). On judicial review, should the Secretary's subjective view on whether other material should be given to the IAA be determinative? If so, is that a question of fact? If so, who bears the onus of proving it? Secretary required to give reasons for "decision" on relevance? If not, does that make it difficult to prove that Secretary's "decision" was legally reasonable?

Federal Court. Is the statutory bar imposed by s 501E of the Migration Act 1958 (Cth) an inevitable, immediate and direct consequence of the Minister exercising the power conferred by s 501BA, with the result that such a consequence has to be considered when exercising that power?