Case Law Updates

High Court. Does s 501(6)(d)(iv) of the Migration Act 1958 (Cth) offend the freedom of political communication implied in the Constitution?

Federal Court (Full Court). 1st and 2nd Appellants made protection claims, adding their appellant children as dependents and making protection claims on their behalf. IAA's finding about children was simply: "Country information does not indicate that children are prosecuted". That finding was based on the following passage of a DFAT report: "Children are never subject to bail or fines". Was the IAA's finding a finding "about what will not happen to returned asylum seekers who are children, rather than a finding about what will happen" and thus not supported by evidence? In order to prove an error was material and thus jurisdictional, must judicial review applicant adduce evidence in court of what would have occurred had error not been made, as held in Ibrahim? Or should FCAFC follow Nguyen instead?

Federal Court. To form a "reasonable suspicion" under to s 189, are officers expected to have detailed knowledge of case law on the concept of 'Aboriginality'? Is it likely that "not all Aboriginal peoples will have the same law and custom governing these issues"? Was the officer's suspicion that the Applicant was a non-Aboriginal unlawful non-citizen reasonable, in circumstances where the 2nd & 3rd limbs of the tripartite test in Mabo (No 2) were satisfied? Are Stewart, EFX17, EPL20, and Sillars distinguishable if s 501CA(3) representations are received within the prescribed period?

Federal Court. Is a willingness to obey or disobey Australian clearly a matter within the conception of the national interest for the purpose of s 501(3)(b) of the Migration Act 1958 (Cth)? Can it be said that "it lies outside the conception of the national interest to take into account conduct which is political communication and organisation because of that feature of the conduct"?

Federal Court. In the context of s 501CA(4), was the Tribunal required to genuinely consider representations made by an applicant with respect to the issue of indefinite detention "arising in addition to, and separately of, the fact that indefinite detention needs to be considered as a standalone legal consequence of the decision"? Can it be said that "a logical conclusion to a finding of non-refoulement obligations being owed would be a consideration of whether indefinite detention would be a risk imposed on the applicant", despite s 197C?

Federal Court. May the extent of what a habeas corpus applicant is required to demonstrate to secure his/her release have regard to the extent to which knowledge of relevant matters is in the hands of the detainer? Can an action for false imprisonment be brought by a person who has no basis at all for a view that the detention was not lawfully justified? In a claim for false imprisonment, must the applicant negative a defence which the respondent may have? In other words, is the lack of a defence an element of the tort?

Federal Circuit Court: The risk of harm or persecution if removed from Australia 'was a matter to be weighed by the Tribunal in determining whether to affirm the' delegate's decision to cancel the visa

Federal Court. Were the matters captured by s 34(2)(a), s 34(2)(b) and s 34(c) of the Australian Citizenship Act 2007 (Cth) mandatory considerations for the purpose of the exercise of the discretion in s 34(2)?

Federal Court. Was the letter incomplete or unclear in that "it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to his authorised recipient"? Does failure to comply with any element of s 66(2) of the Act mean that there has been no notification of the decision and time had not yet commenced to run?

Once an RMA becomes aware that a client may have provided false information to the Department, are they obliged to notify the Department? MARA's answer to that question is quite interesting.