Non-refoulement obligations & s 501CA(4): Part 2
Federal Court: In considering non-refoulement obligations in the context of a decision under s 501CA(4) and Direction 65, did Minister "[misunderstand] that the applicant’s claims would 'necessarily' be considered in the event that the applicant was to make an application for a protection visa"? Minister said it was "unnecessary to determine whether non-refoulement obligations are owed in respect of [the applicant] for the purposes of the present decision as he is able to make a valid application for a Protection visa". Is it implicit that Minister understood that such obligations would be considered in the same way in the context of an application for a protection visa? Did Minister fail to give genuine consideration to matters raised by the Applicant outside of the concept of non-refoulement obligations?
Are digital images “material provided” by applicants?
Federal Court. Under s 473CB(1)(b) of the Migration Act 1958 (Cth), where a protection visa refusal is referred to the Immigration Assessment Authority (IAA), the Secretary must give the IAA "material provided" by the visa applicant to the Department. For the purpose of that provision: are digital images “material”; did the Appellant “provide” the delegate with a digital image by showing it to the delegate on his phone; must the material be given to the IAA even if it is not in the Secretary’s possession or control? We summarises those and many other questions.
s 501(3A): cancellation invalid ab initio?
Federal Court. Can it be said that "an exercise of power under s 501(3A) [of the Migration Act 1958 (Cth)] is invalid where, objectively, a sentence of imprisonment of 12 months or more existing at the date of the cancellation decision is subsequently reduced on appeal to less than 12 months"?
473DC(1)(b): meaning of “may be relevant”
Federal Court. What is the meaning of "may be relevant" in s 473DC(1)(b) of the Migration Act 1958 (Cth)?
Tribunal implicitly rejected qualification in paragraph 6(3) of Direction No 79?
Federal Court: Para 6(3) of Direction 79 stated: "Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time". That sentence was then followed by this qualification: "However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age". AAT's reasons did not refer to that qualification. Did AAT implicitly reject that qualification? Is the materiality test a binary or balancing exercise? Were the "nature and extent of the consequences [of removal] obvious ... from the material before the Tribunal"?
Materiality: where decision was the only legally available decision
Federal Court. Where the decision made was the only decision legally available to be made, does that constitute an exception to the rule that "the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof"? For the purpose of para 14.2(1)(b) of Direction 79, was the Applicant's fianceé a member of his immediate family? Does para 8(4) of Direction 79 provide that primary considerations should invariably be given greater weight? In the context of s 501CA(4), does the materiality test call for a balancing or a binary exercise?
Decision under s 501(1) equivalent to s 501CA(4)(b)(ii)?
Federal Court. Is there a distinction between embarking on the evaluative task in circumstances where a discretion is being exercised such as in s 501(1) and one in which there is no discretion such as in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). If the Tribunal was required to make a decision under the former but did so by reference to the latter provision and that involved an error, was the error material?
Removal rendered not practicable by non-cooperation?
High Court. In determining whether removal to a country is practicable in the reasonably foreseeable future, can the steps practically available to be taken "be expected frequently to include administrative processes directed to removal which require the cooperation of the detainee and in which the detainee has the capacity to cooperate"?
Not liable to s 189 detention if not an alien?
High Court. Can it be said that a non‑citizen who does not have a visa that is in effect is not liable to detention under s 189(1) of the Migration Act 1958 (Cth) if they are not an alien? Can it be said that, "what constitutes reasonable grounds for suspecting a person to be an unlawful non‑citizen must be judged against what was known or reasonably capable of being known at the relevant time"? In other words, can it be said that what constitutes reasonable grounds cannot be invalid ab initio?
cl 9.1.2(2)(a) of Direction 79: would or could?
Federal Court. Can it be said that, although drink driving and possession of child pornography do not require an element of harm to another person to attract criminal sanction, they can cause the type of harm contemplated by cl 9.1.2(2)(a) of Direction 79? Does cl 9.1.2(2)(a) call for consideration of what would most likely (as opposed to what could) occur in the future if the non-citizen engaged in conduct which led to the cancellation of their visa?