Case Law Updates

Federal Court. Is there only one DFAT report which must be taken into account in order to comply with Direction No 84, given that the most recent report said that that it replaced the previous report?

High Court. Was the Executive's desire to comply with Australia's non-refoulement obligations an improper justification not to remove the unlawful non-citizen Respondent from Australia, by virtue of s 197C of the Migration Act 1958 (Cth)? If the Minister fails to remove a person from Australia under s 198 as soon as reasonably practicable, is the appropriate remedy an order mandating compliance by the Executive with the duty imposed by s 198, as opposed to the release of the non-citizen?

Federal Court. Does the phrase 'family violence' in Direction 99 have different meanings depending on the context in which it appears? Was the applicant's conduct relevant to paras 8.1.1(1)(a) and 8.5 of Direction 99 only capable of weighing against him?

Federal Court. Under s 473CB(1)(b), the Secretary must give the IAA "material provided by the referred applicant to the person making the decision before the decision was made". If a protection visa applicant provided material to a delegate but another delegate refused to grant the visa, can it be said that the material was not given "to the person making the decision"? If the material was given to a delegate by the applicant's representative, can it be said that it was not given by the "referred applicant"? With respect, does this Federal Court decision stand in contrast with the High Court's majority judgement in SZMTA?

Federal Court. s 501CA(3)(a) required Minister to notify non-citizen that visa had been mandatorily cancelled under s 501(3A). s 501CA(4)(b) required Minister to invite non-citizen to make representations seeking revocation of visa cancellation within period prescribed by regulations. Reg 2.52 set out a period of 28 days after the person is given the notice and the particulars of relevant information under s 501CA(3)(a). When do 28 days start to run? Minister gave notice & made invitation on 22 Jun 2017, but Applicant only made representations on 4 Sep 2017. On 11 April 2019, DHA emailed the Applicant a personal circumstances form, giving him 28 days to respond. Did that email constitute a fresh invitation such as to recommence the running of time and re-enliven the Minister’s power? Can Minister consider late representations

Federal Court. Clause 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) required that a visa application for subclass 485 be accompanied by evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made. Does a national police history check from “CVCheck” satisfy cl 485.213?

Federal Court. Is s 196(4) of the Migration Act 1958 (Cth) limited "to the power to grant interlocutory relief in proceedings for the judicial review of a visa cancellation decision, as opposed to proceedings challenging the lawfulness of detention (such as a proceeding for a writ of habeas corpus or an order in the nature of habeas corpus, or analogous declaratory relief)"?

Federal Court. Were the applicant’s offending and risk of re-offending matters properly able to be considered as part of the evaluation of the strength, nature and duration of his ties to Australia? Did the Tribunal double count its assessment of the nature and seriousness of the applicant’s offending and the risk of re-offending?Federal Court. Were the applicant’s offending and risk of re-offending matters properly able to be considered as part of the evaluation of the strength, nature and duration of his ties to Australia? Did the Tribunal double count its assessment of the nature and seriousness of the applicant’s offending and the risk of re-offending?

Federal Court (Full Court). Was the standard of protection in s 36(2B)(b) "satisfied by a conclusion that the State authority in question operates an effective legal system for the detection, prosecution and punishment of acts constituting serious harm", regardless of the circumstances of the individual non-citizen? The Applicant sent the FCCA a time extension application on 2 July 2019, but was only accepted for filing by the Registry on 1 August 2019? Was the application nevertheless deemed to have been filed on 2 July 2019?

Federal Court: A delegate of the Minister refused a protection visa application and provided written reasons, pursuant to s 66 of the Migration Act 1958 (Cth). Those reasons contained the date of the decision, but not the time. The matter was automatically referred to the Immigration Assessing Authority (IAA) under s 463CA, which required the IAA to review the decision as soon as reasonably practicable after the delegate "made" the decision. Did the fact that the letter was silent as to the time of the delegate's decision mean that there was no decision to refer to the IAA?