Case Law Updates

Federal Court. Minister: cancelled Applicant's child visa under s 501; detained him under s 189; refused to grant him a protection visa, despite finding he was owed protection; declined to consider granting him a visa under s 195A. Minister accepted that, from 26 July 2019, he was required to remove Applicant from Australia as soon as reasonably possible, due to s 198(6). Until the FCA decision on 11 Sep 2020, Minister had not removed him, but kept him detained. FCA held that, although s 196(1)(a) says an unlawful non-citizen (UNC) must be kept in detention "until" he/she is removed under s 198, detention is unlawful after the first point at which point removal becomes reasonably possible. Minister said that removal was not reasonably practicable, as that would breach international non-refoulement obligations. FCA held that that breach was a moral, but not a legal, justification, given s 197C. As a result, FCA ordered Applicant's release, despite the fact he still was a UNC.

Federal Court. How should the 35 days referred to in s 477(1) of the Migration Act 1958 (Cth) be counted? Was the date of the "migration decision" the date when the Tribunal issued a corrigendum to its decision?

Federal Court: The Immigration Assessment Authority (IAA) cannot consider new information unless it is credible "personal information", which means information about an identified, or reasonably identifiable, individual. Could the IAA have determined the identity of an individual the subject of a previous IAA decision by accessing the IAA's records, with the result that such a person was "reasonably identifiable"? Alternatively, does "personal information" imply knowledge of a person's name?

Federal Court. If a conviction forms the basis for a visa cancellation under s 501(3A) of the Migration Act 1958 (Cth) and the cancellation is then revoked under s 501CA(4), is a decision-maker prevented from using that same conviction as the basis to cancel the visa under s 501(3A)? Did s 501(3A) require an act of the Minister by which a visa was cancelled? Or was the provision rather self-executing?

Federal Court (FCA). On 16 Jun 2020, we summarised a court decision where the Minister had said it would not comply with FCA orders as such orders were made "in error", as the Minister was of the view that FCA had wrongly decided BAL19 and was appealing that decision. In that 16 Jun decision, FCA said "there is no self-evident reason why even a Minister of the Crown should not comply with orders made by this Court and, if found guilty of contempt, liable to the same penalties as any other litigant". On 23 Jun 2020, KDSP overturned BAL19. Could FCA express any "confidence in this particular Minister making any decision “forthwith” ... or within a reasonably short period of time"?

Federal Court. Can it be said that "engaging in an active intellectual process directed to relevant evidence involves real consideration of it, not merely a recitation of parts of it without consideration of its significance or weight"?

Federal Court. Contrary to delegate, AAT found s 36(1C) was met and remitted matter. Minister then personally found Applicant was a danger to the Australian community and refused visa under s 501. Did Minister become "legally bound to apply the reasoning of the Tribunal (absent new circumstances having arisen) in that remitted application more broadly including in respect of his consideration of the Applicant’s representations advanced in reference to s 501". Was the AAT's decision and its reasoning "just another piece of material before him" that the Minister was entitled to place such weight on as he thought fit?

Federal Court: A person fails the character test if it is reasonable to infer from an Interpol notice [IRN] that the person would present a risk to the community: s 501(6)(h). Applicant applied to FCA, seeking orders restraining Minister from refusing visa and declaring that it was not reasonable to infer risk from IRN. Minister served Notice on Applicant to produce Interpol's Response to Applicant's application for IRN to be deleted. Should Applicant's interlocutory application to set Notice aside succeed, on the basis: that Interpol's response could not be used for the purpose of s 501(6)(h); of public interest immunity?

Federal Court: As discussed in a previous article, a judge of the FCA had echoed the writer's concerns about the fact that, sometimes, the Minister inadvertently labels merits review as materiality test considerations. With respect, those concerns have just been echoed by another judge of the FCA.

A guidance decision indicates how the AAT (and possibly the Department) will interpret the transitional provisions for nominations made before 18 March 2018 where no corresponding subclass 457 visa application was made.