Category Archives: Migration Law

Injunction halting asylum seekers transfer to Sri Lanka

The High Court of Australia has reportedly granted an interim injunction ordering the Commonwealth to refrain from transferring certain asylum seekers to Sri Lanka, the country from which they were seeking asylum.

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Sydney, Australia

1300 00 2088

FTZK v Minister for Immigration and Border Protection [2014] HCA 26

ON 27 JUNE 2014, the High Court of Australia delivered FTZK v Minister for Immigration and Border Protection [2014] HCA 26 (27 June 2014).

http://www.austlii.edu.au/au/cases/cth/HCA/2014/26.html

http://www.hcourt.gov.au/assets/publications/judgment-summaries/2014/hca-26-2014-06-27.pdf

The appellant was a Chinese national alleged to have committed serious crimes including kidnapping and murder in 1996. His protection visa application was refused by the immigration minister or the grounds that he was excluded from protection due to the alleged crimes. The Administrative Appeals tribunal affirmed the minister’s decision and the Full Court of the Federal Court of Australia dismissed an appeal against the AAT.

The High Court allowed an appeal against the Full Court, holding that the AAT had made a jurisdictional error in how it found that the refugee had committed the crimes.

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Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25

ON 20 JUNE 2014, the High Court of Australia delivered Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25 (20 June 2014)

http://www.austlii.edu.au/au/cases/cth/HCA/2014/24.html

The High Court held that the Australian immigration minister did not have the power to limit the number of protection visas that may be issued in a specified year.

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Plaintiff S297-2013 v Minister for Immigration and Border Protection [2014] HCA 24

ON 20 JUNE 2014, the High Court of Australia delivered Plaintiff S297-2013 v Minister for Immigration and Border Protection [2014] HCA 24 (20 June 2014).

http://www.austlii.edu.au/au/cases/cth/HCA/2014/24.html

The High Court held that the Australian immigration Minister did not have the power to limit the number of protection visas that may be issued in a specified year. The court ordered that the Minister consider and determine the plaintiff’s application for a permanent protection visa according to law.

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Sydney, Australia

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Plaintiff S156-2013 v Minister for Immigration and Border Protection [2014] HCA 22

ON 18 JUNE 2014, the High Court of Australia delivered Plaintiff S156-2013 v Minister for Immigration and Border Protection [2014] HCA 22 (18 June 2014).

http://www.austlii.edu.au/au/cases/cth/HCA/2014/22.html

http://www.hcourt.gov.au/assets/publications/judgment-summaries/2014/hca-22-2014-06-18.pdf

The court held that certain provisions of the Commonwealth Migration Act 1958, under which a citizen of the Islamic Republic of Iran was detained and subsequently removed to Manus Island, were constitutionally valid.

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Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship

ON 31 AUGUST 2011, the High Court of Australia delivered Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32 (31 August 2011).

http://www.austlii.edu.au/au/cases/cth/HCA/2011/32.html

Lawyer
Peter O’Grady
BA, LLB, Grad Cert Leg Prac, Acc Spec Lawyer

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

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

Australian Citizenship Act 2007 (Cth)

ON 1 JULY 2007, the Commonwealth Australian Citizenship Act 2007 commenced.

http://www.austlii.edu.au/au/legis/cth/consol_act/aca2007254/

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Al-Kateb v Godwin [2004] HCA 37

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

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.

Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303