Privilege against self-incrimination: is there a materiality threshold?
Federal Court (Full Court). Is the question of whether the appellant was denied procedural fairness because he was not reminded of the privilege against self-incrimination the same as the question of whether what occurred was “material”?
Pseudonym a “meaningless and de-humanising numberplate”?
Federal Court. Section 91X of the Migration Act 1958 (Cth) prohibits publication by the FCCA, FCA or HCA of the name of any person who has applied for a protection visa, if the proceeding relates to that visa. Is s 91X constitutionally valid? If it is in the interests of justice, was it open to the FCA to order that an administratively allocated set of letters and numbers be replaced by a "human pseudonym"? If so, was it in those interests to so order so late in the appeal?
Refusal to remove under s 198(1): a “migration decision”?
Federal Court (FCA). Following unsuccessful requests to be removed from Australia under s 198(1) of the Migration Act 1958 (Cth), the Applicant applied to the FCA for mandamus directing the Commonwealth to do so. Subsection 476A(1) provided that, despite any other law, the FCA's "original jurisdiction in relation to a migration decision" was limited to the matters under s 476A(1)(a) to (d). Is the refusal to discharge the obligation under s 198 a "migration decision", with the result that the FCA lacked jurisdiction?
Tribunal’s jurisdiction: secondary applicant
Federal Court (Full Court): in a case where the Minister refused the primary applicant's protection visa application but did not decide the secondary applicant's application, the Tribunal did not have jurisdiction in relation to the secondary applicant
Unreasonable delay in s 501BA(2) remedied by mandamus or certiorari?
Federal Court. Assuming that the power in s 501BA(2) of the Migration Act 1958 (Cth) is required to be exercised within a reasonable time, and that such requirement is not complied with, is the consequence that a writ of mandamus might issue to compel the Minister to make a decision, instead of the power being treated as spent through certiorari?
Were hotels ‘immigration detention’?
Federal Court. Should subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Migration Act 1958 (Cth) be construed as impliedly conferring power on the Minister to approve in writing ‘another place’ of immigration detention? Did s 273 of the Act and subpara (b)(i) of the definition of “immigration detention” impliedly limited the Minister’s power under subpara (b)(v) only to the approval of places which are not a formal institutional place and not a de facto detention centre? If the Commonwealth’s contracting and expenditure on the Hotels was not lawfully authorised, was the applicant’s detention thus unlawful?
473DC(1)(b): meaning of “may be relevant”
Federal Court. What is the meaning of "may be relevant" in s 473DC(1)(b) of the Migration Act 1958 (Cth)?
Love/Thoms interpreted
Federal Court. Can it be said that "it is the proposition that “Aboriginal Australians (understood according to the tripartite test in Mabo (No 2)) are not within the reach of the ‘aliens’ power conferred by s 51(xix) of the Constitution” which is the ratio decidendi of Love/Thoms"? Does the majority reasoning in Love/Thoms as a whole require a single judge to "superimpose onto the Mabo (No 2) test, which was expressed by Brennan J as the method for determining membership of an Indigenous group, a requirement to prove native title in particular land and waters"?
Can veracity of Department’s records be challenged?
Federal Court: Was the Tribunal "ill-advised" to say that it was unacceptable for the Appellant and his mother to state that the Department’s record was untrue? Could the motivation of the Appellant for entry into the relationship (i.e. to obtain permanent residency, as found by the Tribunal) be taken into account in order to determine whether the relationship was genuine? Was this a case where the "well is poisoned beyond redemption" such that 14 statutory declarations could be completely dismissed?
Appellant S395 applicable to s 36(2)(aa)?
High Court. Can it be said that "the differences in the text, context and purpose of s 36(2)(a) and s 36(2)(aa) and, thus, in the construction and application of the separate criteria in s 36(2)(a) and s 36(2)(aa) compel the conclusion that the principle in Appellant S395 in relation to s 36(2)(a) (whether as that provision was framed at the time of the decision or as now in force) does not apply to the statutory task when considering the complementary protection criterion in s 36(2)(aa)? Are the circumstances constituting "significant harm" exhaustively identified in s 36(2A)?