Case Law Updates

Federal Court. Was the Applicant "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", in light of the omission in s 197C of the Migration Act 1958 (Cth) to a reference to s 198AD, despite the Minister's power to take him to Nauru pursuant to s 198AD and despite the fact that the Migration Act does not provide a statutory mechanism to determine such a claim?

Federal Court (Full Court). Does s 198AH(1A) create jurisdictional facts, in the sense of facts that a court can and should determine for itself? In determining pursuant to s 198AH(1A)(c) whether a transitory person "no longer needs to be in Australia for the temporary purpose", should the temporary purpose merely reflect the statutory language of the now repealed s 198C, namely being brought to Australia for "the temporary purpose of medical or psychiatric assessment or treatment", or should the purpose be more specifically identified?

Federal Court (Full Court). Was the standard of protection in s 36(2B)(b) "satisfied by a conclusion that the State authority in question operates an effective legal system for the detection, prosecution and punishment of acts constituting serious harm", regardless of the circumstances of the individual non-citizen? The Applicant sent the FCCA a time extension application on 2 July 2019, but was only accepted for filing by the Registry on 1 August 2019? Was the application nevertheless deemed to have been filed on 2 July 2019?

Federal Court (Full Court). Does s 473CB(1) of the Migration Act 1958 (Cth) require the Secretary to give the IAA the media or record in which information is stored or located, as opposed to the information itself? Should an obligation to "create a permanent record of information given to the delegate by a visa applicant" be implied into Division 3 of Part 2 and into the "review on the papers" mechanism created by Part 7AA of Act?

Federal Court. In determining pursuant to cl 13.1.1(1)(e) of Direction 79 "whether there is any trend of increasing seriousness", should the trend be determined by reference to the dates of the offending, as opposed to the dates of the conviction for such offending? If a particular offending is followed by a less serious offending, does that necessarily mean that the trend of offending is of decreasing seriousness? Is the determination under cl 13.1.1(1)(e) a jurisdictional fact?

Federal Court. Is the power under r 36.75(2) of the Federal Court Rules 2001 (Cth) to set aside or vary an order dismissing an appeal discretionary? What are the relevant considerations in the exercise of the power under r 36.75(2)? Can it be said that "the Tribunal, by indicating that 'it would think about' whether to seek a translation represented that it would inform the applicant one way of its consideration and allow the applicant to respond"?

Federal Court. Is what the High Court said in SZSSJ also applicable to s 351 of the Migration Act 1958 (Cth)? Can the Minister lay down Ministerial intervention guidelines?

Federal Court. Minister concluded that he was “unable to make a finding about” or was “unable to assess the likelihood of” the applicant facing the claimed harm if returned to his country. Can that statement be understood as a failure to perform the statutory task, depending on the circumstances? If so, were such circumstances present in this case?

Federal Court. In what circumstances can courts admit evidence adduced on judicial review? If the Tribunal is exercising the merits review jurisdiction conferred on it by s 500(1)(ba) of the Migration Act 1958 (Cth) in respect of a decision under s 501CA(4) made by a delegate of the Minister, does s 43 of the AAT Act invest for that purpose the Tribunal with all of the powers, discretions and statutory obligations of the delegate?

Federal Court (Full Court). Do ss 197C and 198 "preclude detention for a period of time so that the executive can genuinely consider alternative possibilities for a person to remain in Australia"? Can a delegate or the Minister rationally and reasonably "decide to grant a visa to a person who a) has had a different visa cancelled and b) has applied for the cancellation to be revoked but has been unsuccessful"? Is there an inconsistency between the terms of para 14.1(6) and s 197C? Is the prospect of indefinite detention a mandatory consideration?