Case Law Updates

Federal Court. Does a Class BF Transitional (Permanent) Visa satisfy the definition of a “protection visa” in s 48A(2) of the Migration Act 1958 (Cth)? Was BAL19, which held that s 501(1) did not apply to protection visas, wrongly decided?

According to a landmark Federal Court (FCA) decision which we summarised in Jan 2020, the Tribunal could not consider issues and provisions not considered by the Department. Both the Minister and the non-citizen appealed that decision to the Full Court of the FCA (FCAFC). Was the FCA decision wrong? What are the principles by which the FCAFC might determine whether or not to proceed to hear an appeal where the substantive issues on appeal have become moot?

Federal Court (Full Court). "In the context of an application for a protection visa, the decision-maker’s task is to respond to a “substantial, clearly articulated argument relying upon established facts” including any claim that clearly emerged from the materials". Does that apply to s 501 visa refusals? In application for subclass 201 visa, Appellant argued he and his "family" (i.e. parents and siblings) had humanitarian claims. He then married, had a child and notified DHA of that. Can it be said that, "once the marriage and the birth were notified..., there could be no proper basis for the Minister to proceed on the basis that the risk of harm to family members referred to in the earlier materials was not also asserted to be a risk to which the appellant’s wife and child"? Is subclass 201 a protection visa, with the result that, according to BAL19, s 501 should not have applied?

Federal Court (Full Court). FCA held that a notification under s 501CA(3) of a decision is not a decision. That judgement was appealed to FCAFC. Does a privative clause decision include the making of a determination of an administrative character? If so, does s 501CA(3) require the Minister to make an administrative determination as to the way in which he or she considers the written notice required by the provision is to be given to the person concerned, thus making a notification under that provision a privative clause decision and enlivening FCCA's jurisdiction? If so, does FCCA have jurisdiction to determine whether a determination was made by a person duly authorised by the Minister? Does a notification purportedly sent under s 501CA(3) by a person to whom the power to notify had not been delegated under s 496(1), have legal effect?

Federal Court. Does s 108 authorise the Minister to "decide that there has been non-compliance with s 101 of the Act in a manner that has not been particularised in a notice lawfully given under s 107"? Can it be said that "whilst the particulars of the alleged non-compliance are to be described in the [NOICC], the range of materials available to the decision-maker is not restricted to the responses" of the non-citizen? Was it "impermissible for the Tribunal to have regard to events occurring after the grant of the visa in determining whether the answers given by the appellant were incorrect at an earlier time"? We summarise the answers to the above and many other questions.

Federal Court. Interpol Red Notice (IRN) was issued in relation to Applicant, stating he had been charged. A person fails the character test by reason of s 501(6)(h) if "an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force". On the basis of the IRN, Minister personally refused to grant visa under s 501(1), stating: "It is therefore not without some substance that [the applicant] would be under suspicion of these charges". Does use of the word “would” in s 501(6)(h) require more than mere suspicion? Could it reasonably be inferred from IRN that Applicant would present a risk to the Australian community?

Federal Court. In BAL19, FCA decided that s 501 and PIC 4001 do not apply to protection visa applications. In BFW20, FCA held that BAL19 was not plainly wrong and that DHA could not delay making a decision on protection visa applications on the basis that it disagrees with BAL19 and is appealing that decision. Minister then appealed FCA's decision in BFW20 and applied for a stay of FCA's orders as part of that appeal. Minister argued that, unless a stay was given, he would have to grant a visa on the basis that s 501 did not apply and that, as visa grant is not something that can be undone, the subject matter of the stay application would be destroyed. Should FCA's orders be stayed?

Federal Court. In BAL19, FCA decided that s 501 and PIC 4001 do not apply to protection visa applications. Can DHA delay making a decision on protection visa applications on the basis that it disagrees with BAL19 and is appealing that decision? Was FCA's decision in BAL19 plainly wrong? Does s 501(3A) apply to the cancellation of protection visas? Does s 501 operate independently from s 65? If the delay is not justified and BAL19 was not plainly wrong, should FCA issue a writ of mandamus, requiring DHA to consider according to law the protection visa application on the basis that s 501(1) does not empower the refusal of the application?

Federal Court. Under s 473CB(1)(b) of the Migration Act 1958 (Cth), where a protection visa refusal is referred to the Immigration Assessment Authority (IAA), the Secretary must give the IAA "material provided" by the visa applicant to the Department. For the purpose of that provision: are digital images “material”; did the Appellant “provide” the delegate with a digital image by showing it to the delegate on his phone; must the material be given to the IAA even if it is not in the Secretary’s possession or control? We summarises those and many other questions.

Federal Court. Under s 196(4) of the Migration Act, if a person is detained as a result of a visa cancellation under provisions such as s 501, "the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen". Interpreting s 196(4) in isolation, a court would have no power to make a non-final (i.e. interlocutory) order for the release of a person to whom that provision applies. However, s 476A(2) provides that, where the FCA has jurisdiction in relation to a matter, that jurisdiction is the same as the High Court's. Does s 476A(2) give the FCA the power to make an interlocutory order for the release of a person to whom s 196(4) applies?