Case Law Updates

Federal Court (Full Court). Can it be said that "the discretion resides in the Tribunal under s 438(3)(b) [of the Migration Act 1958 (Cth)] insofar as there is a valid certificate, and that there is no obligation under s 424AA, s 424A or s 425 to disclose to the appellant the information nor any matter contained in the document “unless the discretion is affirmatively exercised”"?

Federal Court. The Minister found: "I also consider that he would have the same access to welfare, health, education and public support as other nationals". Was the Minister’s finding limited to a general finding that the Applicant would have the same level of access to welfare and public support as other PRC citizens, which did not encompass a finding as to the existence or extent of such services in the PRC?

Federal Court (Full Court). Can it be said that, the Federal Court's "jurisdiction having been validly invoked, the Court had power to grant declaratory relief as an adjunct or alternative to other relief, the source of that power being found in either or each of s 23 of the [FCA Act] and s 16 of the ADJR Act, if not also the Court’s status as a superior court of record and one of law and equity"?

Federal Court. Was the Tribunal entitled to find, without evidence, that Canada: had a "comparable standard of support for rehabilitation services" as in Australia; "is a wealthy democratic democracy that enjoys a high standard of living, similar to Australia in many ways"?

Federal Court. In NATB, the FCAFC held that the reference to reasonable practicability in s 198AD "does not require an officer to take into account what is likely, or even virtually certain, to befall the unlawful non-citizen after removal is complete". In MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 442, the FCA then held that the applicant in that case was "entitled to have his claims for protection in respect of Nauru determined and, if found to be well founded, not to be refouled to Nauru". Can MB be reconciled with NATB?

Federal Court (Full Court). In deciding whether it was in the national interest to grant a visa, was the Minister obliged to take into account the legal consequences of his decision, "particularly when those consequences have implications not only for an applicant but also for the nation"? Is there a "necessary inconsistency between being satisfied that the appellant is not a danger to Australia’s security for the purpose of s 36(1C) and not being satisfied that it is in the national interest to grant him a SHEV for the purpose of Sch 2 cl 790.277"?

Federal Court (Full Court). Can the Federal Court on judicial review determine whether the non-statutorily based administrative actions incidental to s 351 of the Migration Act 1958 (Cth), namely the processing by case officers of Ministerial intervention requests, are legally unreasonable? If so, what remedies are available?

Federal Court (Full Court). Can it be said that, "in conducting a review of a non-revocation decision under s 501CA(4) of the Act, the Tribunal must give meaningful consideration to a clearly articulated and substantial or significant representation concerning the risk of harm to the former visa holder if returned to his country of nationality independently of a claim concerning Australia’s international non-refoulement obligations, and that a failure to do so may give rise to jurisdictional error"?

Federal Court. Was the applicant's girlfriend, with whom he had been in a relationship for 1.5 years but only living together for 2-3 weeks and who was neither his spouse nor de facto partner, nevertheless his family member for the purpose of cl 8.2 of Direction 90?

Federal Court. To form a "reasonable suspicion" under to s 189, are officers expected to have detailed knowledge of case law on the concept of 'Aboriginality'? Is it likely that "not all Aboriginal peoples will have the same law and custom governing these issues"? Was the officer's suspicion that the Applicant was a non-Aboriginal unlawful non-citizen reasonable, in circumstances where the 2nd & 3rd limbs of the tripartite test in Mabo (No 2) were satisfied? Are Stewart, EFX17, EPL20, and Sillars distinguishable if s 501CA(3) representations are received within the prescribed period?