Case Law Updates

Federal Court. Did s 501G(3) satisfy the phrase in s 494A(1)(b)(ii) of a provision that "does not state that the document must be given ... by a method prescribed for the purposes of giving documents to a person in immigration detention”? If s 494A(1) applied, did ss 494B(5)(b) and (d), 494C(1) and (5) and s 494D(1) apply? Did the word “giving” in r 5.02 imply a requirement to hand a written notice of the delegate’s non-revocation decision personally to either the applicant or his solicitor? If not and the written notice occurs by email, must it be actually received to satisfy r 5.02?

Federal Court. Was it "uncontroversial that people in immigration detention are subject to a much greater level of surveillance and monitoring than people in the community generally"? Would the complaint that the Tribunal took into account an irrelevant consideration have force "if the fact that the applicant’s ability to avoid drug use had not been “tested” was the Tribunal’s only basis for finding that he posed an elevated risk of reoffending"?

Federal Court.The OMARA cancelled the Respondent's registration as a migration agent under s 303(1)(a) of the Migration Act 1958 (Cth). The Respondent then sought review by the Tribunal, pursuant to s 306. Did the Tribunal have power under s 311A to bar the Respondent from being a registered migration agent, in circumstances where the decision under review had been made under s 303(1)(a)?

High Court. Was the Respondent's finding of guilt as a child made without recording of a conviction, with the result that his offending as a minor was an irrelevant consideration and that the Minister's consideration of it was erroneous, even if the Respondent referred to his offending as a child in his submissions to the Minister?

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. In Ibrahim, FCAFC had held that Assistant Minister conflated Australia’s non-refoulement obligations under international treaties with the protection obligations under the Migration Act 1958 (Cth), thus vitiating decision under s 501BA(2) with jurisdictional error. Does the same principle apply to decisions under s 501(2)? Here, did Assistant Minister incorrectly assume that Applicant’s claims would be considered in the same way if he applied for a protection visa, as the circumstances in which consideration of non-refoulement occurs are very different as between the determination of a visa application under s 65 and the exercise of the discretionary power in s 501(2)? Does Direction 75 require that the protection criteria in s 36(2)(a) and (aa) be considered before all other criteria for a protection visa?

Federal Court. In assessing the risk of a non-citizen re-offending for the purpose s 501(2) of the Migration Act 1958 (Cth), is it unnecessary for a decision-maker to descend to a level of granularity of assessing the risk of specific future criminal conduct, as that would "require the Minister to either develop superhuman prescience or engage in what could only be wild speculation which would ultimately be meaningless"? Is there a "period of limitation in the Act which might prevent the Minister taking action under s 501(2)"?

Federal Court: This decision summarises the principles governing the exercise of the Tribunal's discretion under s 428 of the Migration Act 1958 (Cth) to call a witness at the request of an applicant under s 426.

Federal Court. By stating that Direction 110 required some actions to be taken, did the Assistant Minister proceed on the basis that he was personally required to apply the Direction, thereby making a jurisdictional error?

Federal Court (Full Court). Does the deeming effect under r 2.55(7)(a) apply to r 2.52(2)(b)? Does the mere fact that a State prison can be a place of immigration detention mean that a person held there is "in immigration detention"? Can it be said that "the act of “an unidentified person” giving him the notice of cancellation cannot amount to “service” within the meaning of" r 5.02?