Case Law Updates

Federal Court. If a 'transitory person' who needs to be in Australia for a temporary purpose makes a written request to be removed from Australia, do they need to be removed? If so, can that person be removed to a place contrary to their wishes? Is the subjective opinion of an officer which determines the application of s 198AH(1A)(c)? Pending removal under s 198(1) or (1A), is a non-citizen to be detained?

Federal Court. Do the submissions to the IAA alter its obligation to consider the review material, including the claims that were dealt with by the delegate? In determining whether a claim not expressly made to the IAA nevertheless clearly emerged from the materials before it, is it significant that the delegate considered the claim? Was it necessary for the Appellant to expressly repeat to the IAA the claim made to the delegate, in circumstances where there was no evidence that he had abandoned it?

Federal Court. In Ibrahim, the FCAFC held that, although s 501BA(3) removed the obligation to provide natural justice, it did not prohibit it being provided. Unlike Ibrahim, the Minister here was aware he had the option of providing natural justice, but chose not to. Was that "choice" given to the Minister on the condition that it be exercised legally reasonably? Was the Minister required under s 501BA to consider the submissions made and evidence given by the Applicant to the Tribunal?

Federal Court. The Appellant appealed to the FCA from an FCCA decision and raised a new ground of judicial review for the first time on appeal. Should the FCA refuse leave to run the new ground on the basis that, if leave were granted, the Minister would suffer as he would have no practical right of appeal to the HCA?

Federal Court. Can the materiality test be expressed by asking whether, had an error not been made, there would be be more than a 'derisory' chance that a different outcome could have been reached?

Federal Court. In an FCA decision we recently summarised, the Minister's application for leave to appeal from a decision where he was ordered to answer an interrogatory aimed at determining whether he had turned his mind to a decision was dismissed. In a different case extracted in this article, one of the questions to the FCA was whether it should use its discretion to refuse to grant leave to the Applicant for an interlocutory application seeking a very similar interrogatory, because of the “impracticalities” presented by the possibility of portfolio Ministers being overwhelmed with interrogatories.

Federal Court. Can it be said that, although drink driving and possession of child pornography do not require an element of harm to another person to attract criminal sanction, they can cause the type of harm contemplated by cl 9.1.2(2)(a) of Direction 79? Does cl 9.1.2(2)(a) call for consideration of what would most likely (as opposed to what could) occur in the future if the non-citizen engaged in conduct which led to the cancellation of their visa?

Federal Court. In Australia, it a matter of "ordinary human experience" that a copy of an arrest warrant may be left with a third party connected to the suspected offender? Are the laws of a foreign country relating to the issuance of arrest warrants a matter of "ordinary human experience"?

Federal Court. In AJL20, the FCA held that, as the duty to remove a non-citizen from Australia under s 198 of the Migration Act 1958 (Cth) is not country specific, the attempts to remove a person should not be limited to their home country. What factors informed the answer to the question of whether the Minister discharged the duty to remove the Applicant as soon as reasonably practicable? Was AJL20 plainly wrong?

Federal Court (Full Court). Secretary provided the IAA with allegations from police and police's decision not to prosecute the Appellant. Those materials were irrelevant to the IAA's task and the Appellant knew they had been provided. The IAA afforded the Appellant an opportunity to address the allegations in those materials, accepted 'new information' from him that no charges would be laid, recognised that the police materials were irrelevant and expressly said it gave them no weight. Was there nevertheless a reasonable apprehension of subconscious bias? Does a reference to relative safety necessarily bespeak error?