Case Law Updates

Federal Court. Can it be said that "the absence of an express finding in a Tribunal’s reasons on matters referred to in a ministerial direction does not necessitate the conclusion that no finding was made", as "a decision-maker may not refer to a particular matter because it has been found to be immaterial, or of no real significance" and as "there was no obligation on the part of the Tribunal to refer in its reasons to immaterial matters about which no substantive submissions were made, and which were not the subject of relevant evidence"?

High Court (Full Court). Appellant was born in what is now Malta in 1945, as a British subject. He then entered Australia in 1948 and became a UK citizen in 1949, retaining the status of a British subject. He held an absorbed person visa since 1994, until that visa was cancelled. He was never naturalised Australian and his parents were not Australian citizens. Can it be said that, because the Appellant had the status of a British subject when he arrived in Australia, he could not then have been conceived of as an "alien", with the result that he thereby acquired the status of a non-alien and therefore that he remains outside the reach of s 51(xix) of the Constitution?

Federal Court (Full Court). Did detention in a Youth Justice Centre involve an element of punishment, with the result that such a kind of detention was a form of punitive detention? Was the meaning of “sentenced to a term of imprisonment” in s 501(7) of the Migration Act 1958 (Cth) intended to depend on the different sentencing regimes in diverse jurisdictions? Did a “term of imprisonment” within the meaning of s 501(7)(c) also include non-punitive imprisonment?

Federal Court (Full Court). In the context of s 501CA(4) of the Migration Act 1958 (Cth), the Tribunal denied the Appellant procedural fairness by finding that the appellant failed the character test on different grounds, namely ss 501(6)(c), (d)(i) and (d)(ii), without giving him any notice that it might do so. Was the error material, even though he failed the character test because of s 501(6)(a)?

Federal Court. In the context of s 501CA(4), AAT said to self-represented Applicant at 1st hearing: "But what you can’t say, and what is not standing up to any sort of scrutiny, is that these police reports are not to be accepted, because Ms [L] be a little bit - or a lot - mentally unwell. If that were the case, the police wouldn’t have made the reports". At the end of 2nd hearing, Applicant was asked whether he wished to disagree with the police reports, but he answered in the negative. Did 1st hearing have the effect of directing Applicant that he could not present his case, thus constituting a denial of procedural fairness (PF)? Or did the opportunity to challenge the reports at the 2nd hearing cure any denial of PF that might have occurred at the 1st hearing?

Federal Court. Minister made determination under s 26(3) of Australian Citizenship Act 2007 that Applicant could not make pledge of commitment before a certain date. In the absence of express or implied exclusion of the common law rules of procedural fairness, do those rules generally apply when a decision affects a person's right, property or interest? Did the Act expressly or impliedly exclude those rules?

Federal Court. The applicant was notified that his visa was cancelled under s 501(1) of the Migration Act 1958 (Cth). About a month later, upon request, he received a second notification of the same cancellation, as he lost the first one. Did the second notification reset the deadline under s 500(6B) for the making of a valid Tribunal application?

Federal Court: The Full Court had decided in Ibrahim that the Minister had conflated Australia's non-refoulment obligations under international law with the protection obligations under the Migration Act 1958 (Cth). The Minister sought to distinguish Ibrahim on the basis that, here, he had accepted the findings made by an ITOA regarding non-refoulment obligations and had considered the Appellant's claim of harm "outside of the concept of non-refoulement", thus suggesting that there had been no conflation.

Federal Court. Can it be said in the context of s 501CA(4) of the Migration Act 1958 (Cth) that, "in any particular case, the practical reality of a person’s situation may be such that although there are theoretical avenues by which their immigration detention might be brought to an end, no such avenue presently has any realistic possibility of materialising"?

Federal Court. In considering r 2.43(1)(p), was AAT obliged to comply with Direction 63? Were Appellant’s promise to a delegate not to re-offend and the consequential risk of re-offending mandatory considerations under Direction 63? Did fact that Appellant never abandoned before AAT the promise made to delegate mean the promise was clearly articulated to AAT or clearly emerged from materials before it? Was representation before AAT relevant? Did representative have right to make submissions?