Case Law Updates

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?

Federal Court: In decision under s 501CA(4), AAT wrote: "The [Minister] has ... submitted that the duty to remove a person from Australia only arises if it is reasonably practical [sic] to do so. The Tribunal agrees with this submission. The period of detention is fixed until it is reasonably practicable to remove a person". Did AAT misinterpret ss 197C & 198? In regards to non-refoulement obligations, AAT referred only the “existence of the non-refoulement obligation” and to the fact that the Applicant was a person “to whom Australia has non-refoulement obligations”. Did AAT give "active consideration to the likely significant harms" that refoulement would entail, as mandated by Direction 65? Did AAT consider the prospect of indefinite detention?

Federal Court: Could it be said that, once a visa application form is first drafted on a particular date, it cannot "thereafter be altered and that its form [is] forever fixed as at that date"? If, while a non-citizen is in the migration zone, the Minister considered an invalid protection visa application to be valid and refused to grant the visa, is the non-citizen barred under s 48A from making further protection visa applications while in the migration zone? Does the s 48A bar apply to non-citizens who are making a new protection visa application as secondary applicants?

Federal Court: Saak held that decision-makers should be cautious before making adverse credibility findings based on the fact that a person who arrived by sea omitted a claim at an initial interview carried out just days after arrival and only made that claim later on as part of a protection visa application. Can SAAK operate much later, when the claim is first made in writing with the assistance of an RMA? Is SZTAL authority for the proposition that “no matter how poor the conditions [are] found to be” in the non-citizen's country's prisons, "they will be necessarily irrelevant to Australia’s complementary protection obligation"? Is AAT allowed to ignore claim that is not an applicant's prime focus or is contained in voluminous amount of material? Should AAT or courts consider evidence of content of foreign law? If so, can Wikipedia be used for that purpose?

Federal Court (Full Court): Where a conviction or sentence is the foundation for the exercise of power by a decision-maker, can a challenge be made to the essential facts on which the conviction or sentence was based? If not, is the position different in the context of s 501CA(4)? Should AAT have considered "evidence that went beyond the essential facts underpinning his conviction and sentence"? Can a decision-maker, for the purposes of s 501CA(4), refuse to accept a non-citizen's challenge to a fact on which a sentence is based, on the one hand, and use that challenge against the non-citizen in the context of assessing remorse, on the other hand? Can the difference between sentence & conviction play any role in answering whether the facts on which they were based might be challenged? Subsequent FCA decision seems to have impliedly distinguished this decision.

Federal Court: This decision involved quasi-criminal AAT migration proceedings and might be a prelude to many more quasi-criminal matters to arise if & when the Migration Amendment (Strengthening the Character test) Bill 2019 is enacted, as anticipated in a submission made to Parliament by Sergio Zanotti Stagliorio and Marianne Dickie. That Bill deals with cancellation of any type of visas, not only protection visas. Here, AAT found there was a real risk Applicant would suffer significant harm if returned to Sri Lanka, but found under s 36(2C) that he was taken not to be owed protection as there were "serious reasons for considering that ... " he "committed a serious non-political crime before entering Australia". Should AAT be convinced beyond reasonable doubt? Is s 36(2C) constitutional? This decision seems to impliedly distinguish a previous FCAFC decision.

Under the Migration Act 1958 (Cth), a person served a written notice by the Department, requesting information that might help it ascertain the identity or whereabouts of another person, is obliged to provide that information. Non-compliance can result in imprisonment. Is an RMA obliged to provide clients' information? Does the answer depend on whether the RMA is a lawyer? If practitioners do not have the information sought, are they required to take steps to obtain it?

Federal Court: IAA affirmed visa refusal. Its reasons included: "The report was not before the delegate... I note that the applicant has engaged a representative to assist with the IAA process; however I am not satisfied that the mere engagement of a representative can be considered exceptional". FCA said that "EMJ17 is authority to support the submission that it can be a jurisdictional error to conclude that the absence of 'exceptional circumstances' within the meaning of s 473DD(a) means that the discretion under s 473DC cannot be exercised in favour of getting new information". Does the IAA's decision here "[display] the erroneous view that the discretion in s 473DC(1) was confined by a requirement that 'exceptional circumstances' within the meaning of s 473DD(a) must exist"?