Category Archives: Migration Law

Abebe v Commonwealth [1999] HCA 14 | 14 April 1999

ON THIS DAY in 1999, the High Court of Australia delivered Abebe v Commonwealth [1999] HCA 14; 197 CLR 510; 162 ALR 1; 73 ALJR 584 (14 April 1999)

http://www.austlii.edu.au/au/cases/cth/HCA/1999/14.html

In 1994, the Commonwealth Parliament enacted provisions in Part 8 of the Migration Act 1958 (Cth) limiting the ability of the Federal Court to review the legality of an administrative decision of the Refugee Review Tribunal.

In 1997, Ms Abebe, an Ethiopian woman who unsuccessfully sought refugee status in Australia, brought proceedings in the Federal Court against the Immigration Minister seeking relief on the grounds that she had been denied natural justice and that the Refugee Review Tribunal’s decision declining her application for permanent residence was unreasonable. The Federal Court dismissed the application.

Ms Abebe then made an application to the High Court, challenging Part 8 of the Act and seeking orders for prerogative relief.

The High Court dismissed Ms Abebe’s application, determining that the provisions of Part 8 were not outside of the legislative powers or the Commonwealth.

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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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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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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

Click to access 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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