Case Law Updates

Federal Court (FCA). Is the FCA bound by the parties' agreement on the content of the law or facts? If the FCA declares that the Applicant is not an alien within the meaning of s 51(xix) of the Constitution, can the Applicant be removed from Australia under s 198 or detained under s 189 of the Migration Act 1958 (Cth)? Should the FCA, in the form of a declaration, "lay down a set of rules or prescriptions to be adopted in any potential (or actual) future litigation, which are intended to control the circumstances in which a non-citizen could successfully contend she or he is an Aboriginal Australian"?

The High Court decided whether Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] [1992]) are within the reach of the "aliens" power conferred by s 51(xix) of the Constitution.

Federal Court. The appellant answered a question in a student visa application form, indicating he had never had previous visa refusals. In reality, he had had student visa refusals. Was it unnecessary for the Tribunal to explain in any detail the basis upon which it considered the impugned answer was relevant to cl 500.212 (GTE criterion)? Did PIC 4020(5)(b) require determination of whether cl 500.212 was satisfied? May an applicant's provision of such false or misleading information be a 'relevant matter' within the meaning of cl 500.212(c)?

Federal Court. Do the AAT and the Court have a discretion under ss 501K(2) and 91X(2) respectively of the Migration Act 1958 (Cth) to publish the name of a protection visa applicant?

Federal Court. Was the Tribunal entitled to find, without evidence, that Canada: had a "comparable standard of support for rehabilitation services" as in Australia; "is a wealthy democratic democracy that enjoys a high standard of living, similar to Australia in many ways"?

Federal Court (Full Court). Was the Appellant a non-alien who was not subject to the Migration Act 1958 (Cth), with the result that his detention under s 189(1) of the Act was unlawful, because: he was "accepted by the Australian body politic and community as a citizen ...; the fact that he renounced that citizenship in 1995 does not change his non-alien status"; or "he has the essential characteristics of a non-alien, based on a holistic assessment of his circumstances"?

Federal Court. Was it permissible for the Tribunal, pursuant to cl 9.4.1(2)(a) of Direction 90, to give less weight to how long the Applicant had resided in Australia, on the basis that the offending conduct commenced when he was a minor? Could "a passage of 12 years constitute “soon after” arrival in relation to commencement of offending conduct"?

Under the Migration Act 1958 (Cth), a person served a written notice by the Department, requesting information that might help it ascertain the identity or whereabouts of another person, is obliged to provide that information. Non-compliance can result in imprisonment. Is an RMA obliged to provide clients' information? Does the answer depend on whether the RMA is a lawyer? If practitioners do not have the information sought, are they required to take steps to obtain it?

According to the majority, ‘s 116(1)(a) is properly construed as referring to a state of affairs as distinct from a legal characterisation of a state of affairs’ .

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?