Case Law Updates

Federal Court. Does the balance of convenience favour the granting of an interlocutory injunction in circumstances where "it is arguable as to whether or not jurisdiction exists, and in turn whether or not there has been a departure from ministerially prescribed duties"? What is the prima facie position in relation to the costs of an interlocutory application for an injunction?

Federal Court. AAT set refusal aside, finding Applicant met s 36(2)(aa). On remittal, in considering exercise of discretion under s 501(1), Minister "accepted" AAT had found s 36(2)(aa) was satisfied and "noted" Applicant's submission to Minister relating non-refoulement obligations. Can it be said that Minister's acceptance that the AAT had found that s 36(2)(aa) was met should not be viewed as acceptance by him of substratum of AAT's finding? Can it be said that the use by the Minister of term "note" should not be read as the Minister stating that he agreed with the substratum of the Applicant's submissions, with the consequence that the Minister failed to meaningfully assess the Applicant's submissions and thus failed to discharge his discretion? For the purposes of discretion under s 501(1), is Minister entitled to disagree with or adopt AAT's findings?

Federal Court (Full Court): Does the relocation principle for complementary protection claims apply to children? For instance, if a child is making a protection visa application as a primary applicant, could the child claim, through their parents, that if they return to their country, they will choose an unsafe area for the child, with the result that, if that claim is accepted, the relocation principle will not apply?

Federal Court (Full Court). Do the terms "at the time of the birth” in s 16(2)(a) of the Australian Citizenship Act 2007 (Cth) mean the moment the child “physically emerges from the mother or gestational carrier”, instead of a period of indefinite duration?

Federal Court: Ministerial Direction No 65, now replaced by Direction No 79, provided as follows: "Where the [DFAT] has prepared a country information assessment expressly for protection status determination processes, and that assessment is available to the decision-maker, the decision-maker must take into account that assessment, where relevant, in making that decision". Are decision makers obliged to consider DFAT reports when making decisions to which Direction No 65 applies?

Federal Court: Where the Minister is not obliged to, and does not, provide reasons for a decision: does a submission to the Minister provided by the Department necessarily constitute the Minister's reasons if the decision was recorded on the front page of the submission?; how can a court determine whether the Minister's decision was legally unreasonable?; can it be inferred that the Minister considered the Department's submission? Generally speaking, what are the matters an administrative decision-maker must take into account in exercising a discretion?

Federal Court. Could a mistranslation error leading to a finding that an applicant lacked credibility fall within the type of error referred to by the High Court in DVO16?

Federal Court. Was the question under the definition of “serious Australian offence” whether the particular offence is “punishable by” a certain term of imprisonment, instead of whether the offender was capable of being so punished? Was the definition of “particularly serious crime” in s 5M of the Migration Act 1958 (Cth) limited to a “serious Australian offence” or a “serious foreign offence”?

Federal Court. Will habeas corpus lie where, although a person is not an unlawful non-citizen, an officer detains him/her on the basis of a reasonable suspicion that he/she is an unlawful non-citizen? Must the suspicion that a person is an unlawful non-citizen "be objectively justifiable on the basis of relevant material, including that material which is discoverable by efforts of search and enquiry that are reasonable in the circumstances"?

Federal Court (Full Court). Cl 14.4(1) of Direction 79 required decision-makers to consider, under s 501CA(4), the "impact of a decision not to revoke" the mandatory cancellation of a visa on members of the Australian community, including victims and relatives of victims of the former visa holder. Should cl 14.4(1) be interpreted as referring to the impact of a decision to revoke, as opposed to the impact of a decision not to revoke?