Case Law Updates

Federal Court (Full Court). Were the the answers to the interrogatory sought before the primary judge "capable of forming the basis for an inference that persons in the appellant’s situation are not removed from Australia to Iraq, even though s 197C of the Act (as it then stood) removed non-refoulement obligations as a reason to not comply with s 198" and an inference that the Minister "had personal knowledge of the number of persons in respect of whom Australia owed non-refoulement obligations who had been involuntarily returned to Iraq"?

Federal Court. In Viane, the HCA said: "No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant". Can the word "all" in that passage be explained by the proposition that "it is only where a matter advanced is supported by factual material and it is necessary to make factual findings in order consider the matter advanced that there is a need to consider that factual material"?

Federal Court (Full Court). Can it be said that, for para 9.2(1)(a) of Direction 90, "evidence or findings which reflect that the appellant misuses alcohol and drugs, has a propensity for poor behaviour or committing crimes while intoxicated and has required rehabilitative intervention does not compel a finding that the appellant has a dependency on alcohol amounting to a “health issue”, let alone one that would impede his reintegration in [his home country]"?

Federal Court. In an application for mandamus compelling performance of the duty under s 198AD(2), does the applicant bear the onus of establishing "the non-existence of those circumstances described in ss 198AE, 198AF and 198AG which make s 198AD inapplicable"? Does s 198AD apply to a 'fast track applicant'? Does AJL20 apply to s 198AD(2)? Does FCA have power to order that the applicant be kept at the home of his supporter for the purpose of "immigration detention"?

Federal Court: In Appellant S395, HCA had held that Tribunal made an error by "focusing on an assumption about how the risk of persecution might be avoided" if S395 changed behaviour by not living openly as homosexual. Appellant in the present case stopped believing in Islam and became agnostic, after which he was discreet about his agnostic views and applied for protection. The principal reason for being discreet was that he saw no reason to propagate his views. Another reason was that his mother had "asked him to be careful about speaking out about his ... views". Was it open to the IAA to find that, given Appellant's choice not to proselytise his agnosticism, he did not have a well-founded fear of persecution?

Federal Court. In an application for habeas corpus, is the issue "whether the applicant’s current detention is unlawful, not whether his or her detention has been unlawful in the past"? If a person is lawfully placed in immigration detention for a permissible purpose but that purpose is lost, with the result that detention becomes unlawful, can the detention regain that permissible purpose and therefore its lawfulness?

Federal Court: Application must be accompanied by evidence that skills assessment has been applied for: cl 485.223. Applicant must provide positive skills assessment by TOD: cl 485.224. On visa application form, Appellant specified the details (date, etc) of a failed assessment application. Did the mere specification of those details constitute evidence? Could it be said that: the failed assessment satisfied cl 485.223, as all that clause requires is that the visa application be accompanied by evidence that an assessment has been applied for; cl 485.224 could be satisfied by a subsequent assessment, so long as positive?

Federal Court. Can it be said that "the interest protected by public interest immunity, once a court has determined that such immunity attaches to documents or a class of documents, require that the contents of such documents cannot be disclosed to any person or deployed in evidence in curial proceedings", and that it is "implicit that such material cannot be disclosed to any judge who is called on to determine such cases"?

Federal Court: 'I do not think that [deciding to cancel a visa under s 501(3) rather than s 501(2)] is a “decision” which is subject to judicial review'

High Court. Was Pearson v Minister for Home Affairs [2022] FCAFC 203 wrongly decided?