Case Law Updates

Federal Court. Was the nature and severity of the risk to Australia’s security a consideration that the delegate was legally required to take into account in exercising the discretion in s 128 of the Migration Act 1958 (Cth)?

Federal Court. Court ordered that Minister cease to detain the applicant at the Melbourne Immigration Transit Accommodation centre (MITA) due to the risk of covid-19 entering the MITA and then infecting the applicant. In practical terms, this means Minister will need to place applicant at a different detention centre.

Federal Court (Full Court): "Notwithstanding provisions in Pt 7AA of the Migration Act 1958 (Cth)", was the Immigration Assessment Authority "obliged by natural justice ... requirements to put in writing any matters which it considered to be adverse to a referral applicant and to invite the person to comment on those matters in writing"?

Federal Court (Full Court). If a person is born overseas to non-Australian biological parents and is later adopted by individuals who were Australian citizens at the time of that person's birth, is that person deemed to have been born to Australian parents for the purposes of s 16(2) of the Citizenship Act 2007 (Cth)? Does that Act provide a pathway for all children adopted under Australian law or does it only provide a pathway for children adopted before 22 November 1984?

Federal Court. Does s 108 authorise the Minister to "decide that there has been non-compliance with s 101 of the Act in a manner that has not been particularised in a notice lawfully given under s 107"? Can it be said that "whilst the particulars of the alleged non-compliance are to be described in the [NOICC], the range of materials available to the decision-maker is not restricted to the responses" of the non-citizen? Was it "impermissible for the Tribunal to have regard to events occurring after the grant of the visa in determining whether the answers given by the appellant were incorrect at an earlier time"? We summarise the answers to the above and many other questions.

Federal Court. Did the respondents owe a duty of care to limit the duration of the applicant’s detention to that required for the purpose of his removal from Australia as soon as reasonably practicable from the time of his written request to be removed made under s 198(1) of the Migration Act 1958 (Cth)?

Federal Court. In determining whether the Tribunal afforded the Appellant a meaningful hearing under s 425 of the Migration Act 1958 (Cth), is there a distinction between a “bald statement of belief” on the part of a witness, which may not assist the Tribunal, "and the facts, matters and circumstances supporting that belief, which may be of considerable relevance and importance to determining if that belief has a proper foundation, and therefore should be accepted"?

Federal Court: The AAT's decision record included: "If his application before the Tribunal is unsuccessful, [the Applicant] would be liable for return to Afghanistan as soon as is reasonably practicable, and in the meantime he would be subject to indefinite detention". As the Applicant was actually not subject to indefinite detention (see s 197C), did the use of the term "indefinite detention" in the decision record mean that the AAT made a decision on an incorrect understanding of the law?

Federal Court (Full Court). Do Ch III of the Commonwealth Constitution, the High Court decisions in Dietrich and (No 2), the common law of procedural fairness or customary international support the conclusion that non-citizens have a right to legal representation against the Minister?

Federal Court. Was it irrational or illogical for the Minister to give significant weight to the protection of the Australian community towards his satisfaction of the national interest under s 501A(3) of the Migration Act 1958 (Cth) in circumstances where, as the Applicant would not be taken into detention and would continue to reside in the community by reason of NZYQ?