Posts of YJ, Lim RSSThu, 25 Jul 2024 08:09:27 GMTASF17 v Commonwealth of Australia [2024] HCA 19 (10 May 2024) Intro:- This is an appeal from the Federal Court of Australia Facts:- The appellant, ASF17, is a citizen of Iran. He arrived in Australia as an unlawful non-citizen at the age of 27 in 2013. Except for a short period during which he held a bridging visa between 2013 and 2014, he has been held in immigration detention continuously since his arrival. While in immigration detention, ASF17 in 2015 made an application for a Safe Haven Enterprise Visa ("SHEV"). The application was refused by a delegate of the Minister for Immigration and Border Protection in 2017. An application for judicial review of the decision of the delegate was dismissed by the Federal Circuit Court of Australia in 2017[4] in a decision which was upheld on appeal to the Federal Court of Australia in 2018. The final determination of his application for a SHEV which occurred upon the dismissal of the appeal in 2018 engaged the duty imposed on officers of the Department of Home Affairs ("the Department") by s 198(6) of the Act to remove ASF17 from Australia as soon as reasonably practicable. Unlike the plaintiff in NZYQ, ASF17 has never formally requested to be removed from Australia so as to engage the other duty to remove imposed on officers of the Department by s 198(1) of the Act. For the purpose of facilitating removal of ASF17 from Australia, officers of the Department conducted regular interviews with him from 2018. Throughout those interviews, he consistently told officers that he would not voluntarily return to Iran. He consistently refused to sign a request for removal or to engage with Iranian authorities in planning for his removal. He repeatedly told officers that he would agree to be sent to any country other than Iran. However, he did not suggest that there was any country to which he might be removed other than Iran. Iranian citizens cannot enter Iran from Australia without a travel document issued by Iranian authorities and ... Read more

]]>Thu, 25 Jul 2024 08:09:27 GMTMiller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13 (17 April 2024) Intro:- This is an appeal from the Full Court of the Federal Court of Australia Facts:- Mr Miller is a Fijian national whose Resident Return (Subclass 155) visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) ("the Migration Act"). A delegate of the Minister for Immigration, Citizenship and Multicultural Affairs ("the Minister") decided under s 501CA(4) of the Migration Act not to revoke that original decision on the basis that the delegate was not satisfied in terms of s 501CA(4)(b)(ii) that there was "another reason why the original decision should be revoked". ... Calculating the period so fixed by s 500(6B) of the Migration Act in accordance with s 36 of Acts Interpretation Act 1901 (Cth), the last day for Mr Miller to make an application to the Tribunal for review of the decision of the delegate was 25 March 2021. Mr Miller's migration agent made an application to the Tribunal for review of the decision of the delegate on 24 March 2021. Apparently because the migration agent mistook the form approved by the President of the Tribunal to be used for making such an application, the application made by the migration agent contained no statement of the reasons for the application. The Tribunal held a directions hearing on 1 April 2021 at which the Tribunal requested that Mr Miller provide reasons for the application. In response to that request, Mr Miller's solicitors emailed the Tribunal on 9 April 2021. Under the heading "Why do you claim the decision is wrong?", the email stated, "[t]he Minister erred in concluding that there is not another reason why the original decision to cancel the applicant's Resident Return (Subclass 155) visa should be revoked". There is no dispute that this statement would have been sufficient to comply with s 29(1)(c) of the AAT Act had it been contained in the application made on 24 March 2021. Tribunal and decision of t... Read more

]]>Thu, 25 Jul 2024 08:01:58 GMTMinister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11 (10 April 2024) Intro:- This is an appeal from the Full Court of the Federal Court of Australia. Facts:- The respondent is a citizen of the United States of America whose visa was mandatorily cancelled ("the cancellation decision") in 2019 pursuant to s 501(3A) of the Migration Act 1958 (Cth) ("the Act") because the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs ("the Minister") was satisfied that the respondent did not pass the "character test" as defined in s 501(6) of the Act. Consequentially, the respondent made representations to the Minister seeking revocation of the cancellation decision pursuant to s 501CA(4) of the Act. For that purpose, the Minister was supplied by the Department of Home Affairs ("the Department") with a 13‑page "Submission" which summarised those representations; a 15‑page draft statement of reasons in support of a decision not to revoke the cancellation decision; and copies of all of the actual representations made by the respondent, and on his behalf, as well as other relevant material. The representations and other material comprised 213 pages. They included the respondent's handwritten request for revocation of the cancellation decision, letters and emails of support from his Australian partner, his children under his care and other individuals, letters and emails relating to the respondent's time in prison, certificates confirming the completion of certain courses, medical information and other correspondence. The material also included a record of the decision of the Prisoners Review Board of Western Australia providing for the respondent's conditional release on parole on the basis that the Board found that he "would not present an unacceptable risk to the safety of the community". In making his decision, it is now accepted that the Minister only read the Submission and the draft reasons. He did not read or oth... Read more

]]>Thu, 25 Jul 2024 07:55:34 GMTLPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (10 April 2024) Intro:- This is an appeal from the Full Federal Court of Australia Facts:- The appellant is a Vietnamese national. He arrived in Australia in 1997 and, in 2008, was granted a Class BS Subclass 801 (Spouse) visa. Between November 2011 and August 2017, he was convicted of various offences on three separate occasions, twice in the County Court of Victoria and once in the Magistrates' Court of Victoria, including offences of conspiring to import or export a marketable quantity of a border controlled drug or plant, attempting to possess a marketable quantity of a border controlled drug or plant, and trafficking a drug of dependence. On each occasion he was sentenced to a period of imprisonment, the most recent of which was on 17 August 2017 for a period of four years and six months. In May 2019, the appellant's visa was subject to mandatory cancellation under s 501(3A) of the Migration Act 1958 (Cth) ("the cancellation decision"). An application, under s 501CA(4) of the Act, for revocation of the cancellation failed ("the delegate's decision"). The appellant applied to the Administrative Appeals Tribunal ("the Tribunal") to review the delegate's decision and, in deciding to affirm the delegate's decision, the Tribunal said it was not satisfied (under s 501CA(4)(b)(ii) of the Migration Act) that there was "another reason" why the cancellation decision should be revoked. In considering whether there was "another reason", the Tribunal was required by s 499(2A) of the Migration Act to comply with Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ("Direction 90"). Tribunal's decision The Tribunal was required by para 8.1.1(1)(a) to have regard to the fact that certain "types of crimes or conduct" described therein are deemed to be viewed "very seriously" by the Australian... Read more

]]>Thu, 25 Jul 2024 07:48:03 GMTLesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6 (6 March 2024) Intro:- The plaintiff commenced proceedings in the High Court's original jurisdiction seeking certiorari to quash the delegate's decision to cancel the plaintiff's visa under s 501(2) of the Migration Act, 1958 (Cth). Facts:- The plaintiff was born in July 1983. He is a citizen of Fiji. He arrived in Australia with his parents and siblings in January 1988. In November 1999, he was granted a Class BF 154 Transitional (Permanent) visa permitting him to remain in Australia permanently. From 1996 until 2001, the plaintiff either pleaded guilty to, or was found guilty by the Children's Court of, numerous offences including multiple counts of robbery in company. In August 2003, he was convicted of three counts of robbery while armed with a dangerous or offensive weapon. He was sentenced by the District Court of New South Wales to substantial terms of imprisonment for each offence ("the 2003 offences"). In May 2010, the plaintiff was convicted and sentenced by the District Court to terms of imprisonment for two offences of robbery while armed with a dangerous weapon and two attempts to commit such offences. The issues paper and the delegate's decision As at October 2013, s 501(2) of the Migration Act provided that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects the person does not pass the "character test" and the person does not satisfy the Minister that they pass that test. This power could be, and was, delegated.A person did not pass the character test if, inter alia, they had a "substantial criminal record", which included being sentenced to a term of imprisonment for 12 months or more. The sentences imposed for the 2003 and 2007 offences satisfied the definition of a substantial criminal record. Placed before the delegate was a memorandum prepared by a departmental officer entitled "Issues for consideration of po... Read more

]]>Thu, 25 Jul 2024 07:36:00 GMTAB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10 (13 March 2024) Intro:- This is an appeal from the Supreme Court of Victoria. Facts:- Between 2019 and 2021, IBAC conducted an investigation into allegations of unauthorised access to, and disclosure of, internal email accounts of a "public body" within the meaning of s 6(1) of the IBAC Act. The second appellant, CD, is a registered organisation under the Fair Work (Registered Organisations) Act 2009 (Cth). The first appellant, AB, is a senior officer of CD and an employee of the public body. During the investigation, AB gave evidence to IBAC in a private examination. On 6 December 2021, IBAC provided AB with a redacted version of its draft special report prepared under Pt 7 of the IBAC Act and requested his response by 20 December 2021 ("the Draft Report"). Part 4 of the Draft Report contained proposed findings adverse to AB (and others) in relation to the unauthorised access and disclosure of information and reasons for those findings. Part 5 of the Draft Report contained proposed findings adverse to the appellants (and others) in relation to the workplace culture of the public body and reasons for those findings. On 12 December 2021, AB's solicitor replied to IBAC seeking an extension of time in which to respond, the transcript of his examination, transcripts of the examinations of other witnesses referred to in the Draft Report and copies of other documentary material relied upon to support the proposed adverse findings. On 14 December 2021, IBAC agreed to the extension of time and provided the transcript of AB's examination as well as copies of the documents shown to him during his examination. However, IBAC did not agree to provide the transcripts of the other witness examinations or the other requested documents. Issues:- Does "adverse material" referred to in s 162(3) refer to the proposed adverse comments or opinions in the special report or whether it is the evidentiary mat... Read more

]]>Thu, 25 Jul 2024 07:21:40 GMTIsmail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 (7 February 2024) Intro:- This matter, brought in the original jurisdiction of the Court, involves the construction, validity, and operation of parts of Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ("Direction 90"), which is a direction made under s 499(1) of the Migration Act 1958 (Cth) ("the Act"). Facts:- The plaintiff was born in Lebanon and holds a travel document for Palestinian refugees issued by the Republic of Lebanon. The plaintiff came to Australia on a Student (Higher Education Sector) (Subclass 573) visa in 2010 when he was 21 years old. He was granted a Partner (Subclass 801) visa in 2015 ("Partner visa"). Between 2010 and 2022 the plaintiff was convicted of various offences, including offences of driving while disqualified and offences of domestic violence. On 28 September 2022, a delegate of the Minister administering the Act decided to refuse to grant the plaintiff a Return visa. The delegate concluded that the plaintiff did not pass the "character test" and that the "considerations favouring non‑refusal [of the visa application] are outweighed by the considerations favouring refusal". The plaintiff contends that in making this decision the delegate erred in law on several grounds, each relating to Direction 90. The Act and Direction 90 Section 501(1) of the Act provides that "[t]he Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test". "A decision under s 501(1) involves two steps, being a consideration of whether the person has satisfied the decision‑maker that the person passes the character test, and if not, the exercise of the discretion whether to exercise the power to refuse the visa."[1] The plaintiff does not dispute that he does not pass the "character test" as, in accordance with s ... Read more

]]>Thu, 25 Jul 2024 07:08:00 GMTNZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (28 November 2023) Intro: This is an appeal from the Full Court of the Federal Court of Australia. Facts: The plaintiff is a stateless Rohingya Muslim. He arrived in Australia by boat in 2012 and was taken into immigration detention on arrival under s 189 of the Migration Act 1958 (Cth) ("the Migration Act"). He was granted a bridging visa in 2014. In 2016, the plaintiff pleaded guilty in the District Court of New South Wales to a sexual offence against a child. He was sentenced to imprisonment for five years with a non‑parole period of three years and four months. Upon his release from criminal custody on parole in 2018, he was taken again into immigration detention under s 189(1) of the Migration Act. Whilst still in criminal custody, the plaintiff had applied for a protection visa. His application was considered by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs ("the Minister") in 2020. The delegate found him to have a well‑founded fear of persecution in Myanmar. Having regard to his conviction, however, the delegate found there to have been reasonable grounds for considering him a danger to the Australian community. On the basis of that finding, the delegate found that the plaintiff failed to satisfy the criterion for a protection visa set out in s 36(1C)(b) of the Migration Act and for that reason refused to grant him a protection visa. The Administrative Appeals Tribunal affirmed the decision of the delegate following which the Federal Court of Australia dismissed an application for judicial review of the decision of the Tribunal in 2022. That final determination of his visa application engaged the duty imposed on officers of the Department of Home Affairs ("the Department") by s 198(6) of the Migration Act to remove the plaintiff from Australia as soon as reasonably practicable. Also in 2022, the plaintiff wrote to the Minister requesting hi... Read more

]]>Thu, 25 Jul 2024 06:47:51 GMTBenbrika v Minister for Home Affairs [2023] HCA 33 (1 November 2023) Intro:- This is a proceeding commenced in the Federal Court of Australia under Section 39B Judiciary Act 1903 (Cth) and removed into the High Court by order under Section 40 of that Act. Facts:- The applicant, Mr Benbrika, was born in 1960 in Algeria. He was and remains an Algerian citizen. In 2008, following a trial by jury in the Supreme Court of Victoria, Mr Benbrika was convicted of three offences under Pt 5.3 of the Criminal Code (Cth. He was sentenced to terms of imprisonment of seven years for the first offence, 15 years for the second offence and five years for the third offence. The Court of Appeal of the Supreme Court of Victoria set aside Mr Benbrika's conviction for the third offence but upheld his convictions for the other two offences. On 20 November 2020, the Minister for Home Affairs determined in writing pursuant to Section 36D(1) of the Citizenship Act that Mr Benbrika cease to be an Australian citizen. Mr Benbrika subsequently applied for revocation of that determination pursuant to Section 36H of the Citizenship Act. No decision has been made by the Minister on that application. By operation of s 35(3) of the Migration Act 1958 (Cth) ("the Migration Act"), Mr Benbrika was granted an ex-citizen visa on the purported cessation of his Australian citizenship on 20 November 2020. Statutory context Together with s 36B, s 36D is within Subdiv C of Div 3 of Pt 2 of the Citizenship Act. That subdivision is headed "Citizenship cessation determinations". As was recorded in Alexander, the subdivision was inserted by the Australian Citizenship Amendment (Citizenship Cessation) Act 2020 (Cth) in partial replacement of the scheme for the cessation of citizenship previously inserted by the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth). Subdivision C is introduced by s 36A. That section provides: "This Subdivision is enacted because the Parliament recognises that Aust... Read more

]]>Thu, 25 Jul 2024 06:27:02 GMTYoung v Chief Executive Officer (Housing) [2023] HCA 31 (1 November 2023) Intro:- This is an appeal from the Supreme Court of the Northern Territory Facts:- Ms Young was the tenant of residential premises at Ltyentye Apurte, also known as Santa Teresa, an Aboriginal community approximately 85 kilometres from Alice Springs. The Chief Executive Officer (Housing) ("the CEO"), a corporation sole established under the Housing Act 1982 (NT), was the landlord. For 68 months, the premises had no back door in the doorframe. Ms Young applied to the Tribunal for an order under s 122(1) of the Act that the CEO compensate her for loss or damage she claimed to have suffered because of non-compliance by the CEO with the tenancy agreement. Her application included a claim to be compensated for loss or damage by way of distress and disappointment due to the insecurity she felt because of the CEO's failure to provide a back door in compliance with the term of the tenancy agreement imposed by s 49(1) of the Act. Taking the view that an external door is not "a security device" within the meaning of s 49(1) of the Act, the Tribunal found no breach of the term of the tenancy agreement specified in that sub-section and on that basis dismissed the application for compensation for non-compliance with it. On appeal on a question of law to the Supreme Court of the Northern Territory Blokland J set aside so much of the decision of the Tribunal as had dismissed the application for compensation for non-compliance and substituted an order that the CEO pay compensation to Ms Young in the sum of $10,200 in respect of loss or damage identified as "distress and disappointment due to the failure to provide a premises which was secure. On further appeal to the Court of Appeal of the Supreme Court of the Northern Territory the order made by Blokland J that the CEO pay compensation to Ms Young was set aisde. The Court of Appeal construed s 122(1) of the Act as importing principles of remoteness that limi... Read more

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