Case Law Updates

Federal Court (Full Court): Could it be said that there is no temporal element to the definition of "unauthorised maritime arrival", with the result that persons who entered Australia by boat fall under that definition, whether or not they entered before 13 August 2012? As per s 197C, the duty to remove a non-citizen under s 198(5) as soon as reasonably practicable arises irrespective of whether Australia has non-refoulement obligations. Could it thus be said that a person captured by s 198(5) is necessarily not liable to indefinite detention?

Federal Court. Para 14.5 of Direction No 79 provides, as a consideration to be taken into account in determining whether to revoke under s 501CA(4) a visa cancellation: "The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country)..." Does para 14.5 require a qualitative assessment about not just the nature of the impediments, but also their likely severity? Is the statement in brackets concerned with a comparison between the situation in the non-citizen's hope country and the situation in Australia? We summarise the answer to these and other questions.

High Court. Is the ratio in the High Court's decision in SDCV that, "even where s 46(2) of the AAT Act prevents the Federal Court from providing an applicant with any means to respond to material subject to a certificate ... , it is not contrary to Ch III because it forms an inseverable part of an additional avenue for review that is beneficial (when compared to the other available avenues of review), and therefore causes no practical injustice"?

This decision illustrates how the OMARA can use metadata to check whether applications are genuine and the potential level of involvement of practitioners in the provision of "misleading or inaccurate statements"

Federal Court. If DHA identifies an AAT decision, prepares a brief to the Minister consisting of a decision record setting aside the Tribunal's decision under s 501A(2) and an invitation to circle an option indicating that he adopts that decision record as his own or to circle an option indicating that he does not set aside the Tribunal's decision, and the Minister circles the former, is this sufficient evidence to warrant orders that the Minister answer an interrogatory aimed at determining whether the Minister turned his mind to the decision? Was the interrogatory a fishing expedition?

Federal Court. In BAL19, FCA decided that s 501 and PIC 4001 do not apply to protection visa applications. In BFW20, FCA held that BAL19 was not plainly wrong and that DHA could not delay making a decision on protection visa applications on the basis that it disagrees with BAL19 and is appealing that decision. Minister then appealed FCA's decision in BFW20 and applied for a stay of FCA's orders as part of that appeal. Minister argued that, unless a stay was given, he would have to grant a visa on the basis that s 501 did not apply and that, as visa grant is not something that can be undone, the subject matter of the stay application would be destroyed. Should FCA's orders be stayed?

Federal Court. Is it "likely that the stronger a visa-holder’s ties to Australia, the greater the consequences of permanent exclusion of the visa-holder from Australia in the event that the visa is cancelled"? Was "at least one of the purposes served by the power conferred upon the Minister under s 501(2) of the Migration Act ... to protect the Australian public"? If so, then "having regard to the broad nature of the Minister’s discretion" and to the purpose of protecting the Australian public, was it "within the Minister’s authority to come to the view that [the Applicant] represented an unacceptable risk of harm in respect of any reoffending by him"?

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. Was it impossible for the Applicant to demonstrate the testing of his rehabilitation in the community, as he had not been in the community, with the result that the finding about lack of testing in the community was illogical?

Federal Court: Did the FCCA inadvertently deny the Appellant procedural fairness by, among other things, saying to him that "you can't give [the FCCA] anything new"? The answered turned on what "anything new" meant in the circumstances.