Case Law Updates

Federal Court (Full Court): Could it be said that there is no temporal element to the definition of "unauthorised maritime arrival", with the result that persons who entered Australia by boat fall under that definition, whether or not they entered before 13 August 2012? As per s 197C, the duty to remove a non-citizen under s 198(5) as soon as reasonably practicable arises irrespective of whether Australia has non-refoulement obligations. Could it thus be said that a person captured by s 198(5) is necessarily not liable to indefinite detention?

Federal Court (Full Court): Due to translation issues, the Appellant did not understand a question that was asked of him at an interview with a delegate. The delegate refused that application. The Appellant then put the IAA on notice of the translation issues. Was the IAA "required ... to consider whether or not to request more information from the Appellant by exercising its power under s 473DC(3)"? Did the interpreter's errors bring this case within SZFDE in that those errors amounted to constructive fraud "on" the Tribunal?

Federal Court: A student visa holder was not enrolled in an eligible course and received a notice of intention to cancel his visa pursuant to s 116 for breach of condition 8516. A few days later, he enrolled in an eligible course, before the Minister made the decision to cancel his visa. Can re-enrolment cure a breach of condition 8516? In other words, does re-enrolment have the effect of ceasing the cancellation power from the moment of re-enrolment?

Federal Court: The AAT's decision record included: "If his application before the Tribunal is unsuccessful, [the Applicant] would be liable for return to Afghanistan as soon as is reasonably practicable, and in the meantime he would be subject to indefinite detention". As the Applicant was actually not subject to indefinite detention (see s 197C), did the use of the term "indefinite detention" in the decision record mean that the AAT made a decision on an incorrect understanding of the law?

Federal Court (Full Court): Does the relocation principle for complementary protection claims apply to children? For instance, if a child is making a protection visa application as a primary applicant, could the child claim, through their parents, that if they return to their country, they will choose an unsafe area for the child, with the result that, if that claim is accepted, the relocation principle will not apply?

Federal Court (Full Court): Appellant applied for revocation of the mandatory cancelation of his visa, providing his wife's statutory declaration about his remorse and his own declaration to the same effect. The Minister ignored the Appellant's own declaration. Whether that amounted to jurisdictional error turned on whether the wife's declaration was the "best" evidence about the Appellant's remorse.

Yet another matter remitted by the AAT to the Department based on DFQ17. In DFQ17, the Full Court of the Federal Court held that a "late" Tribunal application was actually not late as the Department's notification letter did not clearly convey the deadline for a valid Tribunal application.

High Court: Should an appellate court make its own finding of fact only where the trial judge's finding of fact was "glaringly improbable" or "contrary to compelling inferences"? Whatever the answer is, it arguably applies to migration matters.

Federal Court (Full Court): The effect of s 48A(1AA) used to be that a person who relied on the Refugees Convention criterion under s 36(2)(a) for a protection visa (PV) application was barred from making a further PV application while in Australia if the original application had been refused. However, that person was not barred from making a further PV application based on the complementary protection under s 36(2)(aa). Subsection s 48A(1AA) was then amended, with the aim of changing that rule, but has the amendment achieved that aim?

High Court: By a 6:1 majority, the HCA decided that the "Chorley exception" to the rule that self-represented litigants cannot recover costs for their own time spent on litigation is no longer part of our common law. The "Chorley exception" allowed self-represented solicitors to recover self-representation costs. But most importantly, the majority questioned whether an incorporated legal practice offering services to third parties could recover costs for work of its sole director and shareholder. Does the same question arise for immigration assistance?