Case Law Updates

Federal Court. In Direction 79, primary and other considerations were specified as matters that must be taken into account 'where relevant'. For the purposes of determining whether there has been compliance with Direction 79, is relevance a matter to be objectively determined? Should judicial review applicants identify particular aspects of the reasoning of an administrative decision said to be illogical or irrational and then claim that, as they were material, there was legal unreasonableness?

Federal Court (Full Court). Till 2014, Migration Act 1958 defined "refugee" by reference to the "Convention", under which a person was not a refugee if it would be reasonable to relocate to a place in their home country where they would not be persecuted (the relocation principle). Since 2014, the Act has defined a "refugee" as a person whose "real chance of persecution relates to all areas of a receiving country", among other things (s 5J(1)(c)). The FCAFC accepted that the relocation principle no longer applies to the definition of "refugee". However, does the reference in s 5J(1)(c) to all areas of a receiving country mean all areas where there is safe human habitation and to which safe access is lawfully possible?

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?

Federal Court. Are the factors in cl 8.1.1of Direction 90 "exhaustive in the sense of being a closed universe of considerations going to the question of the nature and seriousness of a non-citizen’s conduct"? Can it be said that a reference by an administrative decision-maker to "the balance of probabilities may sometimes properly inform some aspect of the process of reaching the correct or preferable decision, but that there are dangers in taking that approach as it may lead to error"? Is cl 9.4.1(2)(a)(i) only 'causally linked' to cl 9.4.1(2)(a), not to cl 9.4.1(2)(b)?

The provision of false information was irrelevant for the purposes of determining whether a passport was a bogus document under s 5(1) and thus whether a protection visa should be refused under s 91WA of the Migration Act 1958

Federal Court. Might legal unreasonableness (in the sense that the result itself bespeaks error) be found on the basis that there is no plausible justification for the timing of a decision under s 501BA(2) of the Migration Act 1958 (Cth) that is otherwise within power?

Federal Court. Does the reference to 'claimed harm' in para 9.1(6) in Direction 90 mean harm that is claimed to be the necessary 'specific type of harm' that must be demonstrated in order to give rise to an international non-refoulement obligation? Did para 9.1(6) require the Tribunal to "consider whether the applicant's case was 'an appropriate case' to assume in the applicant's favour whether the claimed harm relied upon to support the non-refoulement obligation will occur"?

Mandatory cancellation under s 501(3A) requires that (a) the non-citizen not pass the character test and (b) be serving a sentence of imprisonment at the time of cancellation. Federal Court: it is irrelevant when the sentence that enlivens s 501(3A)(a) is imposed or completed; the sentence enlivening s 501(3A)(a) does not need to be the same sentence enlivening s 501(3A)(b)

Federal Court: The AAT received 2 non-disclosure certificates under s 375A, but only disclosed the existence of the first. The second certificate referred to the MRT, although the MRT had already amalgamated into the AAT. The appellant argue, among other things, that had he known about the existence of the second certificate, he could have argued: that it was invalid as it referred to the abolished MRT; that even if it were valid, he could have argued for a favourable discretion to disclose the content covered by it. Does a discretion really exist?

Federal Court. Is the statutory bar imposed by s 501E of the Migration Act 1958 (Cth) an inevitable, immediate and direct consequence of the Minister exercising the power conferred by s 501BA, with the result that such a consequence has to be considered when exercising that power?