Case Law Updates

Federal Court. Once an act is made to detain a person under s 189 of the Migration Act 1958, is the continuation of that detention also an act under s 189? If so, is the continued detention of a person under s 189 a "migration decision", with the result that the FCA does not have original jurisdiction in an application for a writ in the nature of habeas corpus? If so, does the FCA have a residual original jurisdiction to determine whether a habeas corpus applicant is a person to whom s 189(1) can validly apply? Can 189(1) be applied by reference to a hypothetical officer? Was the Applicant "born in Australia" for the purposes of the Australian Citizenship Act 1948, despite being born in the Cook Islands? Was the Applicant an Aboriginal Australian? Were enrolment on the Commonwealth electoral roll and the issue of an Australian passport determinative of whether Applicant was a citizen?

Federal Court. The AAT carried out a hearing and then invited the Appellant in writing to a second hearing, seeking to "provide [her] with an extended opportunity to address any concerns or issues arising from the evidence before it". The Appellant's RMA would be on maternity leave on the date proposed for the second hearing, so she requested another date. The AAT then cancelled the second hearing and sent a s 359A letter instead, setting out what would be the reason for affirming the delegate's decision and inviting comments. Was the AAT obliged to proceed with the second hearing?

Federal Court. AAT was bound by Direction 56 (now replaced by 84) to consider PAM3 guidelines in assessing Appellant's protection claims. Can it be said that, because AAT "had not mentioned the Guidelines in the section of its reasons on “Relevant Law” or in the substantive section containing its findings on the complementary protection criterion, the Court should infer that it had not taken them into account"? Did the fact that the AAT had only referred to conditions at a specific prison in the Appellant's home country and did not report on conditions in other prisons suggest AAT did not consider PAM3? Does the “intentional” infliction of harm for the purposes of the complementary protection require “actual, subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct”?

Federal Court (Full Court). FCAFC held in Ibrahim that Minister misapprehended s 501BA(2) by believing it prohibited him from affording natural justice. Here, Minister admitted to FCA that if Ibrahim applied to s 501(3), he "proceeded on the basis of the alleged misapprehension". After admission but before FCA's decision,  FCAFC held in Burgess that Ibrahim applied to s 501(3). FCA then decided that Burgess and Ibrahim were correctly decided, but that Minister's admission was not conclusive. Was FCA wrong? Further, for the purposes of the materiality test, Ibrahim held that the judicial review applicant had to prove what he would have done had misapprehension not occurred, with which FCAFC (differently constituted) disagreed in Nguyen. 

Federal Court. For the purposes of the materiality test, FCAFC (White, Perry and Charlesworth JJ) held in Ibrahim that the judicial review applicant had to prove what would have happened had the decision-maker not made the error in question. FCAFC (Rares, Griffiths and Burley JJ) in Karan came to the same conclusion. FCAFC (Jagot, Robertson and Farrell JJ) in Nguyen disagreed with Ibrahim. FCAFC (Katzmann, Mortimer and Bromwich JJ) recently adopted one of Ibrahim and Nguyen. However, as the FCA decision extracted in this article indicates, the division shown by the Ibrahim / Nguyen tension is still present among justices of the FCA.

Federal Court. Generally speaking, a person does not lose Australian citizenship by becoming a citizen of another country. However, there are exceptions. For instance, in some circumstances, a person who once was an Australian citizen is not an Australian citizen under the Citizenship Act 2007 (Cth) if they became a citizen of PNG by reason of the PNG Constitution. In this particular decision, did the Applicant become a PNG citizen by reason of the PNG Constitution and therefore lose his Australian citizenship?

Federal Court. Applicant was an unauthorised maritime arrival (UMA) and thus s 46A barred. In July 2017, Minister made determination that bar be lifted for TPV or SHEV if: a) a similar determination had been made relating to UMA's parent; and b) any application by the parent was made by 1 Oct 2017; and c) that application has not been refused and finally determined. When July 2017 Determination was made, Applicant's mother satisfied criteria (a) to (c). In Sep 2019, Applicant applied for SHEV, but application was considered invalid by DHA, as criterion (c) was no longer satisfied. Was that criterion to be satisfied by reference to July 2017 or the time of the SHEV application? Alternatively, should procedural fairness have applied to an assessment carried out for the purposes of a possible exercise of the Minister's discretion to lift the bar?

Federal Court. A person fails the character test under 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". Interpol issued a notice (IRN) in relation to the Applicant. Was it open to the Minister to draw the inference in s 501(6)(h) from the IRN? In determining whether it was open to the Minister to draw the inference in s 501(6)(h) from the IRN, could regard "be had to the regulatory regime under which Interpol notices are issued"? For the purposes of s 501(6)(h), was the Minister confined to an examination of the IRN?

Federal Court. Appellant claimed in his protection visa application that he was arbitrarily detained in Ethiopia at the airport and driven to prison by a person he believed was a private driver. He claimed: he begged for driver to call his wife and tell where he was being taken to; and that the driver did so. AAT invited Appellant to speculate on why driver would have made the call. AAT itself speculated driver would not have called Appellant's wife. Was it irrational for AAT to rely on a matter the Appellant was asked to speculate about as a basis to make adverse credibility findings against him on the factual elements of which he had first-hand knowledge? Is the "adjectival description of “extreme” ... a necessary element in a finding of illogicality or irrationality"? How high is the materiality threshold?

Federal Court. The then self-represented Applicant made multiple attempts before the statutory deadline to lodge a judicial review (JR) application with the FCCA's Registry. After the last attempt, the Registry refused to accept the filing document, as it did not comply with the Federal Circuit Court Rules 2001 (Cth). Applicant eventually made a time extension application after the deadline. Before FCCA, interpreter was having difficulty understanding the Applicant. FCCA dismissed time extension application, saying nothing before it indicated it had received and refused JR application. Did the lack of a "simple inquiry of the Registry" result in the FCCA making a jurisdictional error? Was it necessary for JR application to substantially comply with the rules?