Case Law Updates

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"?

Federal Court. Can it be said that "it is the proposition that “Aboriginal Australians (understood according to the tripartite test in Mabo (No 2)) are not within the reach of the ‘aliens’ power conferred by s 51(xix) of the Constitution” which is the ratio decidendi of Love/Thoms"? Does the majority reasoning in Love/Thoms as a whole require a single judge to "superimpose onto the Mabo (No 2) test, which was expressed by Brennan J as the method for determining membership of an Indigenous group, a requirement to prove native title in particular land and waters"?

Federal Court (FCA). Does the Federal Circuit Court has jurisdiction to review a decision of a delegate made under s 501(3A) of the Migration Act 1958 (Cth)? Is jurisdiction "conferred on the [FCA] to consider an application to extend time under s 477(2) in proceedings transferred to it by the Federal Circuit Court"? Should a single judge of the FCA "lightly decline to follow the considered obiter dicta observations of other single judges of the [FCA]"?

Federal Court. Can administrative decision-makers draw on their own experience and expertise? The Federal Court answered that question as follows: Extract EHV18 v Minister for Immigration, Citizenship,...

High Court. Paragraph (d) of the definition of "behaviour concern non-citizen" under s 5(1) provided as follows: "a non-citizen who ... has been removed or deported from Australia or removed or deported from another country". Does that definition imply removal effected in accordance with Div 8 of Pt 2 of the Act or lawfully or validly removed? Can the legal acts referred to in paras (a) to (c) "be quashed or reversed by a court with the result that there is no decision within the meaning of paras (a) to (c)"?

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. The Minister purported to cancel tje Appellant's visa under s 501(2), but that decision was quashed in court. The Minister then purported to cancel the Appellant's visa under s 501(3), but that decision was also quashed in court. The Minister eventually cancelled the visa under s 501(3) 'again'. Is the power to cancel a visa under s 501(3) spent if the Minister previously exercised the power to cancel under s 501(2)?