Para 9.1(1) of Direction 90 interpreted
Federal Court (Full Court). Do the definition of "non-refoulement obligations" under s 5(1) of the Migration Act 1958 (Cth) or s 197C(1) satisfy the description under para 9.1(1) of Direction 90 of being “tests enunciated in the Act”?
Section 48A bar reset by ministerial intervention?
Federal Court (Full Court). If, following the affirmed refusal by the Tribunal of a protection visa application, the Minister intervenes under s 417(1) of the Migration Act 1958 (Cth), does the protection visa application remain refused, with the result that the bar under s 48A prevents a further protection visa application being made while the non-citizen is in the migration zone?
Choice not to proselytise meant no fear of harm?
Federal Court: In Appellant S395, HCA had held that Tribunal made an error by "focusing on an assumption about how the risk of persecution might be avoided" if S395 changed behaviour by not living openly as homosexual. Appellant in the present case stopped believing in Islam and became agnostic, after which he was discreet about his agnostic views and applied for protection. The principal reason for being discreet was that he saw no reason to propagate his views. Another reason was that his mother had "asked him to be careful about speaking out about his ... views". Was it open to the IAA to find that, given Appellant's choice not to proselytise his agnosticism, he did not have a well-founded fear of persecution?
Costs awarded after judicial review proceedings became moot by visa grant?
Federal Court. Does the principle according to which costs ordinarily follow the event "answer the question as to whether costs should be ordered when, as in the present case, the application was not determined"? If the Applicant would have been substantially successful, had he not been granted the visa, is this a circumstance that favours costs being awarded against the Respondent? In a real sense, was the judicial review application directed at the Applicant's liberty?
Delay justified while special leave application is decided?
Federal Court. Should the FCA grant peremptory mandamus, compelling the Minister to grant the Appellant a SHEV? Is consideration of the "national interest" under cl 790.227 "limited to whether or not the appellant poses an unacceptable risk of harm to the Australian community"? May the Minister justify delay where he or she is exhausting his or her rights of appellate review, including by applying to the High Court for special leave to appeal from the FCAFC's decision?
Multiple sentences under s 34(2)(b)(ii) of Citizenship Act
Federal Court (Full Court). Is the power in s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) triggered only where a single conviction leads to a single sentence of imprisonment for at least 12 months, be it aggregate or prior to cumulation?
Clause 790.227 available if PIC 4001 met and reliance on s 501 disavowed?
High Court. Was the political question posed by cl 790.227 of Schedule 2 to the Migration Regulations 1994 (Cth) (whether the grant of a protection visa was in the national interest) answered by the decision-maker in a manner inconsistent with PIC 4001 and s 501 of the Migration Act 1958 (Cth), as the Minister found PIC 4001 to be satisfied and disavowed reliance on s 501, thus rendering the visa refusal invalid?
Appeal: can para 8.1.1 of Direction 90 inform assessments outside of its terms?
Federal Court (Full Court). Was the view of the Australian government and community that sexual and violence-related crimes are "very serious" (as 8.1.1(1)(a) of Direction 90 records) something that was apt to inform any assessment of the nature or seriousness of the Applicant's criminal history, in circumstances where his offending was neither sexual nor violence-related?
s 46(2) of the AAT Act constitutionally valid?
Federal Court (Full Court). Is s 46(2) of the Administrative Appeals Tribunal Act 1975 (Cth) which, among other things, requires courts to "do all things necessary to ensure that the matter [the subject of a certificate under s 39B(2)] is not disclosed to any person other than a member of the court as constituted for the purposes of the [judicial review] proceeding" brought under s 44, constitutionally valid?
Appeal: were hotels ‘immigration detention’?
Federal Court (Full Court). Did subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Migration Act 1958 (Cth) impliedly confer power on the Minister to approve in writing “another place” of immigration detention? If so, did that power exclude the power to create a de-facto detention centre, which is already provided for in subpara (b)(i) of that definition and s 273 of the Act? Is immigration detention lawful even if the expenditure involved in detaining the appellant was not lawfully authorised?