Case Law Updates

2 decisions of the Federal Court (Full Court). A person fails the character test under s 501(6)(h) of the Migration Act 1958 (Cth) if "an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force". Should the court exercise its discretion against issuing the writs of prohibition and declaration in circumstances where the Minister has not yet made a decision involving s 501(6)(h)? Should a court assess for itself whether it is "reasonable" to make that inference?

Federal Court: the applicant's last email address provided to the Minister for the purposes of receiving documents was the one provided by the AAT

Federal Court: In the context of s 501CA(4), Applicant made detailed claims to AAT of how he would be subject to harm if returned to Somalia. AAT acknowledged those claims but did not expressly make findings on them. Does the FCAFC's decision in Omar stand for the proposition that "the use of expressions such as ‘I note’ and ‘I have considered’ may itself give rise to jurisdictional error"? Did AAT: fail to consider risk of harm outside the scope of non-refoulement obligations; and thus make error considered by FCAFC in Omar? Can it be said that such error was immaterial as AAT accepted Applicant may face torture and even death on return anyway? In other words, is the materiality test a binary exercise?

Federal Court: May ss 473DD(a) and (b)(ii) of the Migration Act 1958 (Cth) overlap? Further, IAA refused to consider new info, saying: "The mere fact that some of the applicant’s siblings have been granted protection on the basis the applicant claims is the same as his own claims, has no probative value when assessing the applicant’s claims for protection". Did IAA, in effect, say that "in no circumstances could evidence" relating to the siblings "have probative value when assessing the applicant’s claims for protection", thus amounting to jurisdictional error?

Federal Court. Does legislation "operate extraterritorially merely because it might have some relationship to events which occur overseas"? Does s 6 of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 (Cth) operate extraterritorially? Is there a "common law right on the part of Australian citizens to re-enter Australia"? If so, was that right abrogated by legislation?

Federal Court. Was the Minister's choice of what factors to take into account for the purposes of assessing the national interest under s 501BA(2)(b)...

Federal Court. For the purpose of the old version of r 5.19(3)(d)(i), now arguably reflected in rr 5.19(5)(n) and (9)(g) of the Migration Regulations 1994 (Cth), does the circumstance that a nominator "has either generated modest profits or indeed has traded at a loss in any year or years" of itself "give rise to a conclusion that the person (nominee) will not be employed on a full-time basis in the position for at least two years, [the nominator] having contended that it would so employ the nominee and having put material before the Tribunal to that effect"?

Federal Court. Does the appellate jurisdiction of the Federal Court encompass an appeal from the issue of a writ of habeas corpus? Is the issue of a writ of habeas corpus interlocutory in nature? Did s 198AD(1) of the Migration Act 1958 (Cth) apply to a person who: (a) has received a favourable exercise of the power in s 46A(2); or is a “fast track applicant” within the meaning of the Act?

Federal Court. Is the conduct listed in cl 8.5(2) of Direction 110 exhaustive for the purposes of cl 8.5?

Federal Court. Can it be said that, "in relation to the decisional process required by s 65(1), the Minister will only have misconstrued his power under s 501(1) if the facts found by the Minister inconsistent with those found by the Tribunal are critical to the Minister’s decision to refuse the visa"? Was it illogical "for the Minister to find that the applicant was a risk to the Australian community in light of the Tribunal’s previous finding that the applicant was not a danger to the Australian community in accordance with s 36(1C) of the Act"?