Case Law Updates

Federal Court (Full Court). In Jul 2017, Minister determined that s 46A bar be lifted for TPV or SHEV if: a) a similar determination had been made relating to UMA's parent; and b) any application by the parent was made by 1 Oct 2017; and c) that application has not been refused and finally determined. Was the latter criterion to be satisfied by reference to Jul 2017 or the time of the SHEV application? We also summarise the court's views on the requirements of procedural fairness concerning s 46A.

Federal Court (Full Court). Till 2014, Migration Act 1958 defined "refugee" by reference to the "Convention", under which a person was not a refugee if it would be reasonable to relocate to a place in their home country where they would not be persecuted (the relocation principle). Since 2014, the Act has defined a "refugee" as a person whose "real chance of persecution relates to all areas of a receiving country", among other things (s 5J(1)(c)). The FCAFC accepted that the relocation principle no longer applies to the definition of "refugee". However, does the reference in s 5J(1)(c) to all areas of a receiving country mean all areas where there is safe human habitation and to which safe access is lawfully possible?

Federal Court (Full Court). Does s 198AH(1A) create jurisdictional facts, in the sense of facts that a court can and should determine for itself? In determining pursuant to s 198AH(1A)(c) whether a transitory person "no longer needs to be in Australia for the temporary purpose", should the temporary purpose merely reflect the statutory language of the now repealed s 198C, namely being brought to Australia for "the temporary purpose of medical or psychiatric assessment or treatment", or should the purpose be more specifically identified?

Federal Court. Is there uncertainty in the interaction between SAAP and Hossain? In determining, pursuant to s 120(1)(a) of the Migration Act 1958 (Cth), whether a fact adverted to by the delegate in the Decision Record constituted “part of the reason” for the delegate’s decision to cancel the appellant’s visa, was it is necessary to have regard to the form (including its pre-populated questions) and content of the Decision Record?

Federal Circuit Court: The risk of harm or persecution if removed from Australia 'was a matter to be weighed by the Tribunal in determining whether to affirm the' delegate's decision to cancel the visa

Federal Court (Full Court). In the context of an assessment under cl 820.211(2)(d) of Sch 2, can it be said "a decision-maker, in a case where the requirements of one of the Schedule 3 criteria has been found not to be satisfied, is required to consider all of the Schedule 3 criteria, and to make factual findings with respect to each element of those criteria, before assessing whether there are compelling reasons not to apply the Schedule 3 criteria"?

Federal Court. In circumstances where the non-citizen was convicted in Victoria, did the Tribunal err by applying Thornton and Lesianawai without giving any consideration to the question of whether there was any Victorian law that attracted the operation of s 85ZR(2) of the Crimes Act 1914 (Cth)?

Federal Court. Is the production of a certified extract from the Registrar of Births Deaths and Marriages for the State of Victoria evidence of the fact of the birth and of each of the facts stated therein? In determining parentage, did it matter that the child support payments that were required to be made by the claimed father were, in the delegate's view, "low"? Was a Medicare card listing both the claimed father and the Applicant evidence of parentage?

Federal Court. For the purpose of s 501(6)(c)(ii) of the Migration Act 1958 (Cth), can the communication of a belief, or the existence of an uncommunicated belief, be considered "present general conduct"? Further, there are 2 incidents of the common law procedural fairness rule: 1) to give an affected person an opportunity to comment on adverse material obtained from other sources; 2) to identify to them issues not obviously open on the known material. Were these incidents excluded by s 51A(1)?

Federal Court. The Applicant, an unauthorised maritime arrival, made a request for Ministerial intervention under s 46A(2) of the Migration Act 1958 (Cth). Before determining that request, the Applicant was told that he would be removed from Australia. In an application for interlocutory injunction to restrain his removal, did the balance of convenience favour the respondents because removal would frustrate the duty under s 198?