Case Law Updates

Federal Court. Can it be said that the existence of a protection finding, with the result that s 198 neither required nor authorised removal, did not render legally unreasonable the giving of heavy weight in the Applicant's favour to the extent of impediments to removal, particularly because of his statement "that he may request removal to Nepal in light of the other legal consequences of refusal of the visa"?

Federal Court. Can it be said that, "in relation to the decisional process required by s 65(1), the Minister will only have misconstrued his power under s 501(1) if the facts found by the Minister inconsistent with those found by the Tribunal are critical to the Minister’s decision to refuse the visa"? Was it illogical "for the Minister to find that the applicant was a risk to the Australian community in light of the Tribunal’s previous finding that the applicant was not a danger to the Australian community in accordance with s 36(1C) of the Act"?

High Court. Should statutory provisions be interpreted, so far as possible, to be consistent with international law, particularly where a provision seeks to give effect to matters of international law? Is the primary object of statutory construction to "construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute"?

Federal Court: "There are a number of troubling aspects of the Tribunal’s reasoning which could, at an impressionistic level at this stage, give rise to a successful appeal. Just by way of example, they include the following... The Tribunal appears to have held it against the applicant that he failed to provide explicit photographs of him and his partner engaging in homosexual sex to prove that he is homosexual".

Federal Court. If the parties to litigation agree on a principle, is that principle's precedential force diminished? Further, in Vaitaiki, Teoh was interpreted by: Burchett J as requiring decision-makers to take the best interests of children into account as a primary consideration if no notice to the contrary was given; Branson J as requiring decision-makers to treat those interests as a primary consideration. Is the error discussed in Teoh better characterised as one going to procedural fairness or as a failure to take into account a relevant consideration? If the former: is the procedural fairness obligation discussed in Teoh either subsumed within s 425 or not a matter dealt with by Div 4 of Pt 7 of the Act; should the FCA adopt Burchett J's or Branson J's interpretation of Teoh?

Federal Court. Can it be said that indefinite detention may need to be considered as a legal consequence of a non-revocation decision under s 501CA(4) of the Migration Act 1958 (Cth) even where Australia’s non-refoulement obligations are not enlivened? Is the finding in NBMZ that decision-makers should consider the legal consequences of a decision limited to the consequence of indefinite detention arising from non-refoulement obligations?

Federal Court. Was the Applicant "entitled to have his claims for protection in respect of Nauru determined and, if found to be well founded, not to be refouled to Nauru", in light of the omission in s 197C of the Migration Act 1958 (Cth) to a reference to s 198AD, despite the Minister's power to take him to Nauru pursuant to s 198AD and despite the fact that the Migration Act does not provide a statutory mechanism to determine such a claim?

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.

Federal Court. A visa application is only made once the VAC is received. This decision confirms that VACs paid by funds transfer (e.g. BPAY) are "taken not to have been received until the payment is electronically matched to the applicant's Internet application form". As the Court interpreted the relevant legislation (including reg 2.12JA) the same way RMAs have for 16 years, there is no reason to be alarmed by this decision.

High Court. Is the common law presumption against extraterritorial operation more accurately labelled as a "presumption in favour of international comity"? Did the Federal Court of Australia Act 1976 (Cth) confer jurisdiction on the Federal Court? Can it be said that "Federal courts, other than the High Court, owe their jurisdiction to laws enacted under s 77(i) of the Constitution"?