Case Law Updates

Once an RMA becomes aware that a client may have provided false information to the Department, are they obliged to notify the Department? MARA's answer to that question is quite interesting.

Federal Court (Full Court). Is the vulnerability of a particular victim because of his or her characteristics such as physical stature relative to the characteristics of the offender a relevant vulnerability for the purposes of paras 8.1.1(1)(b)(ii) and 8.4(2)(c) of Direction 90?

Federal Court (Full Court). The primary judge held that term “detain” when employed in ss 189 and 196 meant "lawfully detain", instead of “detain in fact”. In AJL20, the majority judgement of the High Court rejected "the view that the detention of an unlawful non‑citizen ceases to be authorised by the Act immediately, where there has been a delay in the Executive’s performance of the duty imposed by s 198". Did AJL20 foreclose the path of reasoning applied by the primary judge?

High Court. In determining whether removal to a country is practicable in the reasonably foreseeable future, can the steps practically available to be taken "be expected frequently to include administrative processes directed to removal which require the cooperation of the detainee and in which the detainee has the capacity to cooperate"?

High Court. In some cases, may a statutory provision by which: a right of appeal is conferred impliedly grant jurisdiction to hear the appeal; jurisdiction is granted to hear an appeal impliedly confer a right to appeal? Is a provision that grants jurisdiction to a court to be construed "with all the amplitude that the ordinary meaning of its words admits"?

Federal Court (Full Court). Does it follow from the High Court's decision in Plaintiff M1 that there is "an important distinction between considering (in the sense of adverting to and understanding) the representations made by an applicant seeking the revocation of a visa cancellation under s 501CA(4) (on the one hand) and considering the same representations, in the sense of evaluating their significance in the course of making the decision (on the other hand)"?

Federal Court. Is a random act of criminal violence "persecution" for the purposes of s 5J(1) of the Migration Act 1958 (Cth)? If not, but such random acts are committed for reasons of race, religion, nationality, political opinion or membership of a particular social group and those acts are tolerated by State authorities resulting in a systematic failure to apply the law to the perpetrators, can there be persecution for the purposes of s 5J(1)?

Federal Court. Can the power in s 43(1)(c)(ii) of the AAT Act only be exercised where, to give effect to the Tribunal’s conclusions, it is appropriate to set aside the decision under review but the Tribunal is unable to make a decision in substitution for the decision set aside? Did the impossibility of being satisfied about relevant matters entitle the Tribunal to not weigh the factors in Direction 90 in the balance and remit the matter to the Department for reconsideration? Was the applicant Minister required to establish materiality of error? If so, was that burden onerous?

Federal Court. In AJL20, the FCA held that, as the duty to remove a non-citizen from Australia under s 198 of the Migration Act 1958 (Cth) is not country specific, the attempts to remove a person should not be limited to their home country. What factors informed the answer to the question of whether the Minister discharged the duty to remove the Applicant as soon as reasonably practicable? Was AJL20 plainly wrong?

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?