Case Law Updates

High Court. Can it be said that the giving of the notice, particulars and invitation under s 501CA(3) of the Migration Act 1958 (Cth) "will not be legally efficacious if those documents are given to a person who lacks legal capacity to make decisions with respect to the notice and invitation at the time the notice and invitation was delivered to them, including lacking the capacity to grant an enduring power of attorney or to apply for a guardian to be appointed in relation to the notice and invitation"?

Federal Court. Applicant's representations under s 501CA(3) included: "People like me, who have family in first world countries ... are often kidnapped and held for ransom [in El Salvador]... I would be a prime target". Did the "circumstance that the claims were not supported by objective country information" render them "insignificant so as to relieve the Minister of the obligation to consider them"? Should claims related to Australia's non-refoulement obligations have expressly referred to those obligations? Minister failed to assess non-refoulement claims on the basis that such claims would be considered if and when a protection visa application were. Was that a proper basis?

Federal Court (Full Court). Is the threshold of the evidentiary burden of proof borne by applicants for habeas corpus higher than that borne by applicants for false imprisonment, in that the former requires the applicant to demonstrate that there is a “case fit to be considered”, whereas the latter only requires demonstration of the fact of imprisonment? Must applicants in both causes of action satisfy the evidentiary burden by reference to the same point in (or period of) time?

Federal Court. Did cl 8(4) of Direction 79 require an inquiry as to whether: "one or more of the other considerations should be treated as being a primary consideration"; or one of the other considerations can or should be "afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply"? Could a primary consideration outweigh other primary considerations even if the case is not outside the "circumstances that generally apply", whatever that may mean?

Federal Court. Should the Court withhold the grant of constitutional relief, for instance on the basis that the applicant’s case before the Minister was founded on the premise that Al-Kateb correctly represented the law and that the Minister should apply such law in making his decision, even though NZYQ subsequently overruled Al-Kateb?

Federal Court. Under s 473CB(1)(b) of the Migration Act 1958 (Cth), where a protection visa refusal is referred to the Immigration Assessment Authority (IAA), the Secretary must give the IAA "material provided" by the visa applicant to the Department. For the purpose of that provision: are digital images “material”; did the Appellant “provide” the delegate with a digital image by showing it to the delegate on his phone; must the material be given to the IAA even if it is not in the Secretary’s possession or control? We summarises those and many other questions.

Federal Court. Is an alien who has no legal right to remain in Australia "permitted to engineer their own release into the community by frustrating the efforts of officers to carry out their duty under s 198 of the Act"? If so, should a non-citizen who seeks to prevent his/her return to the country where they fear harm, but does not seek to prevent his/her removal from Australia to some other place, be seen as engineering their own release into the community?

Federal Court. Section 47(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW) read: "A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires." Do the terms 'end of the day' mean end of daylight hours for the purpose of the reference to 12 months' imprisonment in ss 501(7)(c)-(d) of the Migration Act 1958 (Cth)?

Federal Court (Full Court): In the context of s 501CA(4), was the Appellant's prohibition upon his ability to return to Australia by reason of cl 5001(c) of Sch 5 to the Migration Regulations 1994 (Cth) a legal or a practical consequence of a non-revocation decision? Was that consequence a mandatory relevant consideration? Does the process of statutory construction of the Migration Act "permit of some consequences being more immediate than others"? Does a decision made under cl 5001(c) lack "legal proximity" to decisions made under the Act? The FCAFC was divided on several issues.

Federal Court. Is an address given on an incoming passenger card given for the purpose of s 52(3A) of the Migration Act 1958 (Cth)? Was it open to the Minister to treat an address given for the purpose of s 52(3A) as the "person's last residential address ... known to the Minister" within the meaning of r 2.55(3)(c) of the Migration Regulations 1994 (Cth)?