Case Law Updates

Federal Court (Full Court). Was the Appellant denied procedural fairness in that "the Minister or the Minister’s delegate decided to exercise the cancellation power in s 501(3A) rather than 501(2) [of the Migration Act 1958 (Cth)] when the latter requires the person affected to be given an opportunity to be heard before the power is exercised whereas the former does not"?

Federal Court (Full Court). Is 'danger' as used in s 36(1C)(b) of the Migration Act 1958 (Cth): such that "the harm that will eventuate if the danger becomes a reality is non-trivial" and "of a physical or psychological kind"; one "that combines an assessment of how probable harm is with an assessment of the severity or seriousness if the probability eventuates"? Is the 'Australian community' as used in s 36(1C)(b) conceived of as the community as a whole and/or any person or persons who are part of it?

Federal Court. Delegates refused 2 requests made under s 7 of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth). Section 7 provided that an exemption to the travel ban may be granted to an AU citizen or PR in exceptional circumstances, which are demonstrated by providing a compelling reason for needing to leave Australia. Does s 7(2) exhaust the concept of exceptional circumstances? Does the delegate's use of the language of “critical” reason rather than “compelling” reason indicate error? Do the situations which indicate a need for compassion to be exercised fall within the concept of “exceptional circumstances"? Does s 7 call for a balancing exercise of the reason for travel against the risk it might pose to the AU community? Were the circumstances described in Department of Home Affairs' website a policy? Must content of procedural fairness obligations conform to the circumstances of an emergency situation? Was denial of procedural fairness cured by fact that first refusal put Applicants on notice of factors considered by delegate?

High Court. Does the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia come to an end when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future? If so, who bears the onus of proving that there is no real prospect of removal becoming practicable in the reasonably foreseeable future?

Federal Court. Does the term 'immediate family' under cl 14.2 of Direction 79 include parents? If a decision-maker finds one of the factors in Direction 79 in favour of a non-citizen, but the weighing exercise called for by s 501CA(4) nevertheless results in a finding that there is not 'another reason' to revoke a mandatory visa cancellation, can an error in assessing that factor be material in that, had it not been made, additional weight could have been placed on that factor, which could have tipped the scales in the non-citizen's favour?

Federal Court: the AAT held a second hearing 20 months after the first hearing. The Appellant made a delayed judicial review (JR) application to the Federal Circuit Court (FCCA), which made a decision 13 months after its own hearing. Questions: 1) if the FCCA accepted the delayed JR application, was it required to consider all grounds of JR contained in that application? 2) did the Tribunal's delay subvert the merits review process? 3) did the FCCA's delay give raise to appealable error?

Federal Court: The AAT found that a protection visa applicant (the Appellant) was likely to be extorted by Pakistani authorities if removed to Pakistan, but that he could avoid persecution by bribing them. Did the AAT make a jurisdictional error by considering how the Appellant could (as opposed would) conduct himself if removed to Pakistan?

Federal Court (FCA). Is the FCA bound by the parties' agreement on the content of the law or facts? If the FCA declares that the Applicant is not an alien within the meaning of s 51(xix) of the Constitution, can the Applicant be removed from Australia under s 198 or detained under s 189 of the Migration Act 1958 (Cth)? Should the FCA, in the form of a declaration, "lay down a set of rules or prescriptions to be adopted in any potential (or actual) future litigation, which are intended to control the circumstances in which a non-citizen could successfully contend she or he is an Aboriginal Australian"?

Federal Court (Full Court). Is r 2.55(3) of the Migration Regulations 1994 (Cth) inconsistent with s 494A(1) of the Migration Act 1958 (Cth) and therefore invalid? For the purpose of r 2.55(3)(c), could a prison’s post office box address also be the post office box address of one of its inmates, in the absence of evidence that the involuntary nature of detention impacted on the ability of inmates to receive mail sent to the address of the prison?

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"?