Category Archives: Migration Law

Migration Act 1958 (Cth) | 1 June 1958

ON THIS DAY in 1959, the Commonwealth Migration Act 1958 commenced.

http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/

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Plaintiff S297-2013 v Minister for Immigration and Border Protection [2015] HCA 3

ON 11 FEBRUARY 2015, the High Court of Australia delivered Plaintiff S297-2013 v Minister for Immigration and Border Protection [2015] HCA 3 (11 February 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/3.html

On 22 June 2014, the High Court of Australia delivered Plaintiff S297-2013 v Minister for Immigration and Border Protection [2014] HCA 24 (20 June 2014), ordering that the Minister determine the plaintiff’s application for a permanent protection visa according to law.

In July 2014, the Minister refused to grant the plaintiff a permanent protection visa on that grounds that he was not satisfied that the grant of such a visa was “in the national interest” because the plaintiff was an unauthorised maritime arrival.

On 11 February 2015, in the most recent case, the High Court held that the Minister’s decision in July 2014 to not grant the visa was not according to law because under the Migration Act 1958 (Cth) the Minister could not refuse such an application just because the plaintiff was an unauthorised maritime arrival.

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CPCF v Minister for Immigration and Border Protection [2015] HCA 1

ON 28 JANUARY 2015, the High Court of Australia delivered CPCF v Minister for Immigration and Border Protection [2015] HCA 1.

http://www.austlii.edu.au/au/cases/cth/HCA/2015/1.html

The plaintiff and 156 other passengers were on an unseaworthy Indian flagged vessel which was intercepted by an Australian border protection vessel in Australia’s contiguous zone in the Indian Ocean. The plaintiff claimed to be a refugee fleeing persecution in Sri Lanka for being a Tamil. The plaintiff and the other passengers were detained by the Australian maritime officers and first taken to India and then to the Australian Territory of the Cocos (Keeling) Islands where they were placed into immigration detention.

The plaintiff claimed damages for wrongful imprisonment, alleging that the detention was unlawful under the Maritime Powers Act because he was not afforded procedural fairness in that he was not asked whether or not he was a person in respect of whom Australia owed non-refoulement obligations.

The High Court dismissed the claim, holding that the detention was not unlawful under the Maritime Powers Act 2013 (Cth). The court held that:

 

Kioa v West [1985] HCA 81 | 18 December 1985

ON 18 DECEMBER 1985, the High Court of Australia delivered Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (18 December 1985).

http://www.austlii.edu.au/au/cases/cth/HCA/1985/81.html

The High Court recognized that an administrative decision maker has duty of acting fairly or according procedural fairness under the rules of natural justice.

A decision was made to deport Mr Kioa and his family back to Tonga on the grounds of him changing his address without notifying the department and engaging with Tongan illegal immigrants. Mr Kioa was given an opportunity to make submissions but was not informed of the adverse allegations.

The High Court held that a failure to disclose to Mr Kioa the adverse allegations and allow him the opportunity to respond was a failure to afford procedural fairness.

As a fundamental principle of natural justice, an opportunity must be given to deal with adverse information that is credible, relevant and significant to the decision to be made.


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Minister for Immigration and Border Protection v SZSCA [2014] HCA 45

ON 12 NOVEMBER 2014, the High Court of Australia delivered Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 (12 November 2014).

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Plaintiff S4-2014 v Minister for Immigration and Border Protection [2014] HCA 34

ON 11 SEPTEMBER 2014, the High Court of Australia delivered Plaintiff S4-2014 v Minister for Immigration and Border Protection [2014] HCA 34 (11 September 2014).

The plaintiff arrived at Christmas Island without a visa. The Minister for Immigration and Border Protection issued the plaintiff with a temporary humanitarian concern visa and a temporary safe haven visa. The effect of being issued with the temporary visas was to prevent the plaintiff from making an application for a protection visa until the Minister enquired as to whether or not the plaintiff would be eligible to make a valid application for a permanent protection visa.

The plaintiff was kept in detention for more than two years whilst the Minister’s department enquired as to whether the plaintiff would be eligible to make a valid application for a protection visa.

The High Court quashed the Minister’s decision, holding that the grant of the temporary visas in such a manner was invalid.

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Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 | 21 August 2007

ON THIS DAY in 2007, the Federal Court of Australia delivered Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 (21 August 2007).

http://www.austlii.edu.au/au/cases/cth/FCA/2007/1273.html

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WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 | 15 August 2003

WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 (15 August 2003).

http://www.austlii.edu.au/au/cases/cth/FCAFC/2003/171.html

The applicant was a citizen of Iran who applied for a protection visa. Evidence upon which he relied included two letters purporting to show an association with a reformist cleric named Ayatollah Sayed Mohammad Shirazi.

The Refugee Review Tribunal affirmed the decision of the delegate of the Minister for Immigration and Indigenous Affairs not to grant the applicant’s visa, finding that it was not satisfied that he had a genuine fear of persecution and there was not a real chance that he would face persecution upon his return to Iran. The Tribunal concluded that several parts of the applicant’s evidence were implausible and that he was not a credible witness. Specifically, the Tribunal doubted the genuineness of the letters concerning the Ayatollah Shirazi.

It was common ground that the Tribunal did not at any time indicate to the applicant of its doubts about the letters, nor did it give the applicant an opportunity to put his case as to why they were genuine.

The applicant brought proceedings in the Federal Court seeking prerogative writs against the Tribunal’s decision. Those proceedings were dismissed by French J.

The Full Court of the Federal Court allowed an appeal, setting aside French J’s orders, issuing a writ of certiorari and remitting the matter back to the Tribunal. The Full Court held that procedural fairness imposes a duty on the Tribunal to ensure that an applicant is made aware of the case against him or her and given an opportunity to be heard in response to the issues to be decided.

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Al-Kateb v Godwin [2004] HCA 37 | 6 August 2004

ON 6 AUGUST 2004, the High Court of Australia delivered Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124; 78 ALJR 1099 (6 August 2004).

http://www.austlii.edu.au/au/cases/cth/HCA/2004/37.html

The High Court held that the provisions under the Migration Act 1958 (Cth) requiring the continued detention of non-citizens for an indefinite period are not prohibited by the Constitution because the purpose of the legislation is the eventual removal of those persons.

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JARK (representing a class as defined in Paragraph 1 of “Nature of the Claim” in the Writ of Summons) v Minister for Immigration and Border Protection and Anor; SAS v Minister for Immigration and Border Protection and Anor [2014] HCATrans 148 (7 July 2014)

ON 7 JULY 2014, Justice Crennan of the High Court of Australia granted an interim injunction restraining the Commonwealth from taking, removing, deporting or surrendering certain asylum seekers into the custody of the government of Sri Lanka.

http://www.austlii.edu.au/au/other/HCATrans/2014/148.html

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Sydney, Australia

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