Case Law Updates

Federal Court. Was the prospect of indefinite detention a necessary and foreseeable consequence of the Tribunal’s decision which should have been considered, as the the obligation to consider it was not limited to "circumstances where the Tribunal was satisfied that Australia would be in breach of its international non-refoulement obligations should the applicant be returned" to their home country? In other words, does the Full Court decision in DQM18 prevail over AZAFQ to the extent of any inconsistency?

Federal Court (Full Court): In SZMTA, HCA had held that: error is jurisdictional only if it is material, that is if a different decision could have been made had the error not been made; materiality is a question of fact of which judicial review applicants bear the onus of proof. In Ibrahim, FCAFC had held that it was incumbent on the judicial review applicant to demonstrate what would or could have occurred had the error not been made. In Nguyen, FCAFC, differently constituted, disagreed with that aspect of Ibrahim. In Weti-Safwan, it was unnecessary to resolve that tension, given the facts of that case. Can the Ibrahim / Nguyen tension be resolved? Were those decisions distinguished here? With respect, we disagree with one aspect of this decision.

Federal Court (Full Court). Was the Tribunal permitted for the purpose of s 501CA(4) of the Migration Act 1958 (Cth) to consider the combined influence of cll 9.4.1(2)(a) and (b) of Direction 90 as constituent parts of the “other ties” consideration in cl 9.4.1(2) and apply the abating effect under cl 9.4.1(2)(a)(i) to that consolidated whole?

Federal Court. Section 91X of the Migration Act 1958 (Cth) prohibits publication by the FCCA, FCA or HCA of the name of any person who has applied for a protection visa, if the proceeding relates to that visa. Is s 91X constitutionally valid? If it is in the interests of justice, was it open to the FCA to order that an administratively allocated set of letters and numbers be replaced by a "human pseudonym"? If so, was it in those interests to so order so late in the appeal?

Federal Court. Can it be said that the Immigration Assessment Authority's "statement that “there was no evidence before me” should be understood as meaning...

Federal Court. Minister concluded that he was “unable to make a finding about” or was “unable to assess the likelihood of” the applicant facing the claimed harm if returned to his country. Can that statement be understood as a failure to perform the statutory task, depending on the circumstances? If so, were such circumstances present in this case?

Federal Court (Full Court). Was it legally unreasonable, irrational or illogical for the Minister to conclude that the risk that the appellant posed to the community and community expectations weighed in favour of cancellation of his visa when the appellant would remain in the community anyway on a BVR because of the effect of NZYQ?

Federal Court. Do the "obligations to accord natural justice and the obligation to act within the bounds of legal reasonableness are closely linked and overlap to some extent"? Does "the codifying effect of s 473DA(1)" mean that, "except to the extent that procedural fairness overlaps with legal unreasonableness, procedural fairness is not the “lens” through which the content of procedural obligations imposed on the Authority in the conduct of a review is to be determined"?

Federal Court (Full Court). If, following the affirmed refusal by the Tribunal of a protection visa application, the Minister intervenes under s 417(1) of the Migration Act 1958 (Cth), does the protection visa application remain refused, with the result that the bar under s 48A prevents a further protection visa application being made while the non-citizen is in the migration zone?

Federal Court. Can it be said that "the generally serious consequences of refoulement – but not the particular consequences in an individual case – are taken into account in giving meaning and content to the requirement that there be “serious reasons for considering”" pursuant to s 5H(2)(a) of the Migration Act 1958 (Cth)? How to interpret Articles 22(1) and 25(3)(c)-(d) of the Rome Statute of the International Criminal Court, entered into force 1 July 2002?