Case Law Updates

Federal Court. In determining whether an unarticulated claim nevertheless clearly arose from the materials before an administrative decision-maker, is it relevant that the non-citizen was professionally represented before that decision-maker throughout the process?

Federal Court. "Where there has been inordinate delay and that consideration weighs so heavily against an extension of time being granted" in an application for judicial review, does it necessarily follow that the applicant must demonstrate "something exceptional or out of the ordinary in the circumstances of the case to provide a countervailing justification for extending time"? If so, would it be difficult to demonstrate that circumstances are exceptional if the case sought to be advanced were not "exceptional"?

Federal Court. Can it be said that "the absence of an express finding in a Tribunal’s reasons on matters referred to in a ministerial direction does not necessitate the conclusion that no finding was made", as "a decision-maker may not refer to a particular matter because it has been found to be immaterial, or of no real significance" and as "there was no obligation on the part of the Tribunal to refer in its reasons to immaterial matters about which no substantive submissions were made, and which were not the subject of relevant evidence"?

High Court. Was the Executive's desire to comply with Australia's non-refoulement obligations an improper justification not to remove the unlawful non-citizen Respondent from Australia, by virtue of s 197C of the Migration Act 1958 (Cth)? If the Minister fails to remove a person from Australia under s 198 as soon as reasonably practicable, is the appropriate remedy an order mandating compliance by the Executive with the duty imposed by s 198, as opposed to the release of the non-citizen?

Federal Court. Will habeas corpus lie where, although a person is not an unlawful non-citizen, an officer detains him/her on the basis of a reasonable suspicion that he/she is an unlawful non-citizen? Must the suspicion that a person is an unlawful non-citizen "be objectively justifiable on the basis of relevant material, including that material which is discoverable by efforts of search and enquiry that are reasonable in the circumstances"?

Federal Court. Does the language of 362B of the Migration Act 1958 (Cth) "confine the circumstances in which the [AAT's] power to dismiss [an application for review] may be exercised to those cases where the application for review may be described as unmeritorious or where the application for review is not being actively pursued"? Does the AAT have power to conduct hearings via video-link?

Federal Court (Full Court). The power under s 501CA(4) of the Migration Act 1958 (Cth) can be exercised in the circumstances described in s 501CA(1), which provides as follows: "This section applies if the Minister makes a decision ... under subsection 501(3A)" (emphasis added). If a visa is cancelled under s 501(3A) by a delegate, does that mean that a decision cannot be made under s 501CA(4)?

Federal Court. Does the word "detain", as used in ss 189 and 196 of the Migration Act 1958 (Cth), mean "lawfully detain", with the result that the making of an order compelling the performance of the "duty" imposed by s 198 is not the sole remedy for an abandonment of the lawful purposes of detention contained in s 196(1) and that therefore another available remedy would be an order for the release of a non-citizen from immigration detention? Was AJL20 plainly wrong?

Federal Court. Is the holding of concerns about the veracity of the new information for the purposes of 473DD of the Migration Act 1958 (Cth) the same as concluding that the new information is not “credible personal information” (i.e. information that is not capable of being believed)? If so, can it be said that, in fact, "the mere conclusion of “concerns” about the new information necessarily means that the information was capable of being believed"?

Federal Court (FCA). Is the FCA bound by the parties' agreement on the content of the law or facts? If the FCA declares that the Applicant is not an alien within the meaning of s 51(xix) of the Constitution, can the Applicant be removed from Australia under s 198 or detained under s 189 of the Migration Act 1958 (Cth)? Should the FCA, in the form of a declaration, "lay down a set of rules or prescriptions to be adopted in any potential (or actual) future litigation, which are intended to control the circumstances in which a non-citizen could successfully contend she or he is an Aboriginal Australian"?