Case Law Updates

Federal Court: In a landmark decision which we recently summarised, the Federal Court held that s 501 of the Migration Act 1958 (Cth) did not apply to the refusal of protection visas. But can protection visas be cancelled under s 501? Is a subclass 851 (resolution of status - RoS) visa a protection visa?

Federal Court: In the context of s 501CA(4), AAT found it did not need to consider Applicant's claim that he feared harm if returned to Iraq as non-refoulement obligations would be assessed first if Applicant applied for protection visa, due to Direction 75. AAT wrote: "Although this Tribunal is inclined to believe that [the applicant] would be at some risk if returned to Iraq ..., it is not in a position to make any such definitive finding in the absence of more solid probative or evidentiary material to which it does not have access". Nevertheless, AAT found that such a claim weighed in favour of the Applicant. Did AAT make the error discussed by the FCAFC in Omar by not considering risk of harm outside the scope of non-refoulement obligations? Can it be said that such error was immaterial as AAT found there would be "some risk" of harm anyway? In other words, is the materiality test a binary exercise?

Federal Court: In the context of s 501CA(4), Applicant made detailed claims to AAT of how he would be subject to harm if returned to Somalia. AAT acknowledged those claims but did not expressly make findings on them. Does the FCAFC's decision in Omar stand for the proposition that "the use of expressions such as ‘I note’ and ‘I have considered’ may itself give rise to jurisdictional error"? Did AAT: fail to consider risk of harm outside the scope of non-refoulement obligations; and thus make error considered by FCAFC in Omar? Can it be said that such error was immaterial as AAT accepted Applicant may face torture and even death on return anyway? In other words, is the materiality test a binary exercise?

Federal Court (Full Court): In the context of s 501CA(4), was the Appellant's prohibition upon his ability to return to Australia by reason of cl 5001(c) of Sch 5 to the Migration Regulations 1994 (Cth) a legal or a practical consequence of a non-revocation decision? Was that consequence a mandatory relevant consideration? Does the process of statutory construction of the Migration Act "permit of some consequences being more immediate than others"? Does a decision made under cl 5001(c) lack "legal proximity" to decisions made under the Act? The FCAFC was divided on several issues.

We have always thought that the Tribunal can expand the scope of a merits review by considering issues and provisions not considered by the Department. However, according to this landmark Federal Court decision, that is not always the case. We explain why and how practitioners can use this decision in favour of their clients in terms of limiting the scope of the Tribunal's review. By limiting that scope, clients could have 2 chances to have each issue or provision assessed on their merits, one at the Department level and another at the Tribunal level.

Federal Court: In NBMZ, FCAFC held: Minister had to consider legal consequences of s 501 cancellation;  lack of reference to them led to inference they were ignored. In Taulahi, FCAFC held: NBMZ was about direct & immediate consequences (whether or not obvious) and applied to any statutory power. Did Cotterill broaden the principle in NBMZ & Taulahi to include the "real possibilities" of what might flow from a decision? Do those cases  apply to s 501CA? If so, was Minister required to consider mere possibility that Applicant was stateless and thus subject to indefinite detention? Should we infer Minister knew the way Act operates as he acknowledged Applicant could apply for protection visa and issued Direction 65, which contemplated indefinite detention?

Federal Court: Although this decision concerned a non-migration matter, it could be relevant to migration matters. Construction Occupations Registrar made a decision that it would only grant a licence subject to annotations. Applicant applied to FCA for judicial review of Registrar's decision under ADJR Act, but almost 6 months late. Was the fact that there was no barrier to the Applicant making a fresh licence application a factor that should go in favour of the FCA granting time extension? If so, could that same argument be made in a case where a non-citizen missed the deadline for judicial review application but is not barred by s 48 or any other provision from making a further visa application of the same class as the one that was refused?

Federal Court: In the context of s 501BA(2), FCAFC had held in Ibrahim that: Minister conflated non-refoulement with the protection obligations under Migration Act; error was material because the internal relocation principle, which formed part of the non-refoulement obligations, no longer formed part of the protection obligations under the Act. In DGI19: FCA held Ibrahim applied to s 501CA(4); but Minister argued it should be distinguished on the basis that DGI19 did not argue to Minister the difference between the non-refoulement obligations and the protection obligations under the Act for the purposes of the relocation principle; FCA did not distinguish Ibrahim, holding that it was "not incumbent on an applicant proleptically to deal with the possibility of relocation". Was Omar (first instance) wrongly decided?

Federal Court: The FCA summarised previous FCA and FCAFC decisions dealing with the question of whether it is an error for a decision-maker to defer consideration of non-refoulement obligations in the context of s 501CA(4) to a point in time in the future when a non-citizen might apply to a protection visa. Further, could it be said that "the argument that the applicant could face indefinite detention is flawed because, now, s 197C operates to require an unlawful non-citizen to be removed from Australia, subject only to the Minister considering 'alternative management options'"?

Federal Court: In considering non-refoulement obligations in the context of a decision under s 501CA(4) and Direction 65, did Minister "[misunderstand] that the applicant’s claims would 'necessarily' be considered in the event that the applicant was to make an application for a protection visa"? Minister said it was "unnecessary to determine whether non-refoulement obligations are owed in respect of [the applicant] for the purposes of the present decision as he is able to make a valid application for a Protection visa". Is it implicit that Minister understood that such obligations would be considered in the same way in the context of an application for a protection visa? Did Minister fail to give genuine consideration to matters raised by the Applicant outside of the concept of non-refoulement obligations?