Does para 9.3(1) of Direction 90 exclude consideration of impact of removal?
Federal Court (Full Court). Did para 9.2(1)(a) of Direction 90 require that there must be medical certification in order for a non-citizen’s “health” to be taken into account under that paragraph? Can it be said that para 9.3(1) applied "only to the impact on a victim of the perpetrator remaining in Australia, and excluding consideration by a decision-maker of the impact upon a victim of an offender being removed from Australia"?
What to do if DHA want to know client’s whereabouts?
Under the Migration Act 1958 (Cth), a person served a written notice by the Department, requesting information that might help it ascertain the identity or whereabouts of another person, is obliged to provide that information. Non-compliance can result in imprisonment. Is an RMA obliged to provide clients' information? Does the answer depend on whether the RMA is a lawyer? If practitioners do not have the information sought, are they required to take steps to obtain it?
FCA’s jurisdiction for false imprisonment extended to other claims?
Federal Court (FCA). If the FCA has jurisdiction to determine a claim for damages for false imprisonment and habeas corpus on the basis that the Respondent failed to remove the Applicant from Australia as mandated by s 198, does 476A exclude the FCA's jurisdiction to entertain the Applicant’s claims for injunctive relief requiring the Respondent to discharge its duty under s 198 or to declare that the Respondent failed to comply with that duty? Can the FCA issue a peremptory writ of mandamus?
BAL19 overturned
Federal Court (Full Court). Is the power conferred by s 501 to refuse to grant a visa "exercised in the performance of the duty imposed by s 65(1)(b) to refuse to grant the visa for the reason that the grant of the visa is prevented by s 501"? In BAL19, FCA decided that s 501 did not apply to protection visa applications. Was BAL19 wrongly decided? Must the power under s 501A(2) be exercised within a reasonable period of time? If so, was a period of 18 months unreasonable?
Interplay between ss 473DD(a) and (b)
High Court. Should the circumstances in ss 473DD(b)(i) and (ii) be factored into s 473DD(a)? Is the IAA required to consider the conditions in ss 473DD(b)(i) and (ii) before considering s 473DD(a)? If not, would it at least be efficient and prudent for the IAA to consider first the conditions in ss 473DD(b)(i) and (ii) and only then consider s 473DD(a) if one or both of those conditions is satisfied?
Harm feared without having experienced that type of harm before?
Federal Circuit Court. Can a protection visa applicant "fear a particular type of harm for the purposes of the refugee convention and complementary protection without having ever experienced that particular type of harm in the past"? Is the IAA "obliged to consider a claim that is expressly and clearly made, even if there is no country information to support that claim"?
s 500(6H) interpreted
Federal Court. Does s 600(6H): preclude the Tribunal having "regard to" particular information, as opposed to the reception of that particular information and, if so, does it necessarily follow that "the preclusionary effect of s 500(6H) could not have justified the Tribunal’s decision to not allow the applicant’s partner to be called"; "require that the Tribunal must not have regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing"; always require that prior notice of the source of the information to be presented orally be given?
Protection criteria to be assessed as if removal could occur?
Federal Court (Full Court). Does the phrase 'being removed from Australia' in s 36(2)(aa) of the Migration Act 1958 (Cth) extend to voluntary or involuntary removal under s 198 or potentially under other provisions? If there is no prospect of an applicant being removed to their country voluntarily or involuntarily, is the decision-maker nevertheless obliged to consider s 36(2)(a) or (aa) as if removal could occur?
Clause 9.1(2) of Direction 90 interpreted
Federal Court. Did para 9.1(2) of Direction 90 "require the legal and practical consequences of prolonged detention with no fixed chronological end point to be weighed against the seriousness of the applicant's criminal offending and other serious conduct"?
Does FCA have jurisdiction to grant mandamus for performance of s 198(1)?
Federal Court (FCA). Can a court grant mandamus by way of interlocutory relief? Does the FCA have jurisdiction or power to grant mandamus compelling...