Case Law Updates

High Court. Practitioner used written submissions deriving from a previous client as a template for submissions sent to the IAA concerning 2 other clients. As a ground of judicial review, must fraud affect a particular duty, function, or power of the IAA? If so, were they affected for either of those 2 other clients? Was the IAA's failure to exercise the power in s 473DC to get new information, namely new submissions, legally unreasonable?

Federal Court (Full Court). Did subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Migration Act 1958 (Cth) impliedly confer power on the Minister to approve in writing “another place” of immigration detention? If so, did that power exclude the power to create a de-facto detention centre, which is already provided for in subpara (b)(i) of that definition and s 273 of the Act? Is immigration detention lawful even if the expenditure involved in detaining the appellant was not lawfully authorised?

Federal Court: The FCA summarised previous FCA and FCAFC decisions dealing with the question of whether it is an error for a decision-maker to defer consideration of non-refoulement obligations in the context of s 501CA(4) to a point in time in the future when a non-citizen might apply to a protection visa. Further, could it be said that "the argument that the applicant could face indefinite detention is flawed because, now, s 197C operates to require an unlawful non-citizen to be removed from Australia, subject only to the Minister considering 'alternative management options'"?

'... Agent had accessed the personal and immigration information of a person who was not her client on three separate occasions without their knowledge or permission, using [VEVO]'

Federal Court (Full Court): Direction 65, which for the purpose of this decision was identical to Direction 79, required the Tribunal to take into account a number of considerations in deciding whether to refuse a visa under s 501 of the Migration Act 1958 (Cth). One such consideration was labelled the "expectations of the Australian community". Are those expectations pre-determined by the direction itself as deemed expectations? What is the content of those expectations?

High Court (Full Court). Appellant was born in what is now Malta in 1945, as a British subject. He then entered Australia in 1948 and became a UK citizen in 1949, retaining the status of a British subject. He held an absorbed person visa since 1994, until that visa was cancelled. He was never naturalised Australian and his parents were not Australian citizens. Can it be said that, because the Appellant had the status of a British subject when he arrived in Australia, he could not then have been conceived of as an "alien", with the result that he thereby acquired the status of a non-alien and therefore that he remains outside the reach of s 51(xix) of the Constitution?

Federal Court (Full Court). Was the Tribunal entitled to re-characterise the Appellant's conduct and, in doing so, depart from the characterisation adopted by the sentencing judges in a significant way, by labelling the conduct as 'predatory'? In other words, was the Tribunal entitled to go behind the sentencing remarks? If so, does it follow that the Tribunal "was required, in the circumstances, to inform the appellant that it may form a different view and to invite comment from the appellant"?

If an RMA's website advertised that "your case will be represented and advocated only by [an RMA] throughout the entire application process", but a client was not dealt with by an RMA, was that advertisement, combined with other factors, misleading even if the non-RMA dealing with that client was located overseas?

Federal Court. If the Tribunal's decision not to call a witness put forward by the Appellant was affected by jurisdictional error in that it lacked an evident and intelligible justification, could that error also be identified as a failure to take into account a relevant consideration (that the witness' oral evidence may assist the Tribunal to determine the Appellant's claim to be a refugee)?

Federal Court: Delegate purported to cancel NZ citizen Appellant's subclass 444 visa under s 116(1)(e) of the Migration Act and DHA purported to remove her under s 198. The cancellation was then quashed by the FCCA on the basis of jurisdictional error (JE). Appellant eventually tried to re-enter Australia, but was refused a 444 visa because: s 32(2)(a)(ii) provided that a 444 visa applicant must not be a "behaviour concern non-citizen"; under s 5, a person who "has been removed or deported from Australia or removed or deported from another country" is a "behaviour concern non-citizen". Can it be said that the phrase “removed or deported from Australia” means legally or lawfully removed or deported from Australia. Alternatively, can it be said that Appellant was never removed under the Act?