Case Law Updates

Federal Court (Full Court). In Katoa, the High Court held that, in determining whether to extend time under s 477A(2) of the Migration Act 1958 (Cth), the Federal Court was not limited to a reasonably impressionist level of assessment of the merits of the judicial review application. Does Katoa apply to s 477?

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. AAT was bound by Direction 56 (now replaced by 84) to consider PAM3 guidelines in assessing Appellant's protection claims. Can it be said that, because AAT "had not mentioned the Guidelines in the section of its reasons on “Relevant Law” or in the substantive section containing its findings on the complementary protection criterion, the Court should infer that it had not taken them into account"? Did the fact that the AAT had only referred to conditions at a specific prison in the Appellant's home country and did not report on conditions in other prisons suggest AAT did not consider PAM3? Does the “intentional” infliction of harm for the purposes of the complementary protection require “actual, subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct”?

Federal Circuit Court: for the purposes of cancellation under s 116(1)(e), the risk to the good order of the Australian community included risk caused by actions of members of that community; those members needed not be reasonable nor identified

Federal Court: Delegate purported to cancel NZ citizen Appellant's subclass 444 visa under s 116(1)(e) of the Migration Act and DHA purported to remove her under s 198. The cancellation was then quashed by the FCCA on the basis of jurisdictional error (JE). Appellant eventually tried to re-enter Australia, but was refused a 444 visa because: s 32(2)(a)(ii) provided that a 444 visa applicant must not be a "behaviour concern non-citizen"; under s 5, a person who "has been removed or deported from Australia or removed or deported from another country" is a "behaviour concern non-citizen". Can it be said that the phrase “removed or deported from Australia” means legally or lawfully removed or deported from Australia. Alternatively, can it be said that Appellant was never removed under the Act?

Federal Court: the Minister may seize a document if he/she "reasonably suspects" that it is forfeited under s 45A(2) of Citizenship Act, which provides that a "bogus document" given to the Minister is forfeited. A bogus document is defined as a document that the Minister "reasonably suspects" satisfies some criteria. Does that mean that "all that is required for seizure is a reasonable suspicion that the Minister has a reasonable suspicion that the document is a bogus document"?

Federal Court: "The High Court has warned against attaching particular significance to the [International Covenant on Civil and Political Rights - ICCPR] and its attendant jurisprudence in interpreting sections of the [Migration Act 1958 (Cth)] which incorporate ICCPR obligations". However, can decisions of international bodies interpreting Art 7 of the ICCPR "in the context of withheld or inadequate healthcare ... be of assistance in determining when an obligation might arise in the context of deportation"?

High Court (Full Court): a non-citizen held in immigration detention invited the Court to draw the inference that there was no real prospect or possibility that he would be removed from Australia. Based on that inference, he also invited the Court to adopt the view of the minority in Al-Kateb, to the effect that his detention was unlawful.

According to OMARA: it received 6 complaints against RMA, some of which alleged she failed to pass on tuition fees received from clients to schools; RMA claimed her employee, whom she sponsored on a 457 visa and was an Education Agent (EA), fraudulently received client payments to EA's personal bank account. Questions to OMARA: did RMA coerce EA; did RMA use her position as an employer / sponsor in a manner unbecoming of an RMA; did RMA fail to properly supervise EA? Further, OMARA used IP addresses to determine whether EA had lodged visa applications on RMA's behalf.

Federal Court (Full Court): In her visa cancellation revocation request, the Respondent made an "uncontentious assertion" that the sentencing remarks relating to her most recent convictions made no reference to whether those convictions involved drug use. The Minister took that assertion as a denial that those convictions were drug related and inferred that, because of the denial, she was likely to re-offend. Should the Minister have put the Respondent on notice that her "uncontentious assertion" would be critical to his decision?