by Paul Cutler | Dec 1, 2021 | Uncategorized
Migration law is complicated enough at the best of times. It gets worse when there are (often) overlapping review proceedings on foot and multiple visa applications. Ms Moorcroft (who is a NZ citizen) was removed from Australia after her special category visa was cancelled in January 2018.
In June 2018 the Federal Circuit Court quashed (with the Minister’s consent) the cancellation decision. As a result Ms Moorcroft returned to Australia in January 2019 and set off the following chain of events:
- her special category visa was refused on arrival (and she was detained). She sought judicial review of that decision;
- In March 2019, the Federal Circuit Court dismissed her review application and she appealed to the Federal Court;
- In March 2020 the Federal Court quashed the Circuit Court decision and she was granted (the following day) a special category visa;
- Unfortunately for her, the Minister obtained special leave for a High Court appeal;
- In June 2021 the High Court set aside the Federal Court judgment
- In October 2021, she was placed in immigration detention (again) and applied for a bridging visa (“BV”).
The Minister’s view was that the BV application was invalid because she wasn’t an “eligible non-citizen”.
Another Federal Court proceeding was commenced (see Moorcroft v Minister [2021] FCA 1348 ) and the central issue was whether the March 2020 visa (which was granted after her successful Federal Court case but before the High Court overturned it) was valid? The short answer is “no”. The decision effectively meant that the grant was invalid ab initio.
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by Paul Cutler | Nov 5, 2021 | Uncategorized
Although much ink was spilled (and a lot of fees incurred) arguing about the bounds of legal unreasonableness, Minister v SZVFW [2018] HCA 30 was basically a case about service. Consider the following facts:
- The Applicants applied for a protection visa. Their application contained their contact details (incl address) and they acknowledged that they would keep the Department informed of any changes in those details. They get invited to an interview and fail to attend. Their visa application was refused;
- They lodged an application for review in the AAT. The AAT sent out a notice inviting them to a hearing and they didn’t attend. In the absence of the applicants the AAT affirmed the decision under review;
- The Applicants then went to the the Federal Circuit Court seeking judicial review of the AAT refusal on the basis that it was unreasonable to decide the matter in their absence. The Judge found that the AAT had acted unreasonably by not following up the notice with an email or a phone call;
- The Minister then appealed to the Full Federal Court Circuit. The Circuit Court decision survived the appeal.
Unfortunately for the Applicants, the Minister was very persistent. Special leave was obtained in the High Court and the HCA took the view that the AAT had done nothing wrong. Once the notice was sent to the nominated address in accordance with the service provisions of the Migration Act (whether it was received or not) the AAT was entitled to proceed in the way it did (under section 426A). In fact based on the Applicant’s past performance the Court observed that “following up” was probably going to be futile in any event.
Apart from being a useful review of the law of unreasonableness, the case is also interesting for the discussion (ie a wrap over the knuckles to the Federal Court) about the role of appellate courts, the exercise of discretion and the principles in House v The King.
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by Paul Cutler | Aug 3, 2021 | Uncategorized
Troyrone Lee was born to Australian citizen parents in, what was then, the external territory of Papua (Papua) on 20 May 1975. This was a few months before PNG achieved independence in September 1975.
Mr Lee had held an Australian passport for 42 years, which had been renewed, without question, on numerous occasions. All that changed in December 2016, when his application to renew his passport was denied on the grounds that he was not an Australian citizen. He was (apparently) a citizen of Papua New Guinea (PNG). One of the problems with that was that the PNG government was saying he wasn’t.
Well, who was right?
Minister for Home Affairs v Lee [2021] FCAFC 89
The judgment is 108 paragraphs long and involved consideration of complex issues arising out of the PNG Constitution, PNG Independence Act, the common law of PNG, the interpretation of the 1948 Citizenship Act as well as numerous Australian constitutional concepts such as naturalisation and who is an immigrant (including whether Papua was ever a foreign country). I also didn’t realise that at common law, if your parents were married you acquired the domicile of your father. If they weren’t married you acquired the domicile of your mother.
Ultimately, Mr Lee was found never to have been an “immigrant” and was always part of the Australian community.
I must also admit that I liked the last paragraph of the judgment:
We would respectfully add the following. It may perhaps be that, with the lapse of time and related inter-generational turnover of personnel between when Mrs Lee was given advice by Australia’s post in Port Moresby about the ongoing citizenship status of her infant son and modern times, memory has been lost in Australian officialdom, in contrast it seems with their counterparts in Papua New Guinea, of just how pregnant with meaning for Papua New Guineans, and Papuans in particular, was the expression “no … real foreign citizenship” in PNG’s Constitution. There is no evidence at all that either the Minister or those advising him in his department ever acted in bad faith in advising Mr Lee that he had become a citizen of Papua New Guinea on Independence, only that they were mistaken. Even so, the mistake made in good faith has plainly had an emotive and economic impact on Mr Lee. In these circumstances, it may well be that Mr Lee’s case is one which warrants consideration by the Commonwealth of the making of an Act of Grace payment to him.
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by Paul Cutler | Jul 19, 2021 | Uncategorized
K
oda v Minister for Immigration [2021] FCAFC 82 is an interesting Full Court case about the Citizenship Act.
Consider the following facts:
- the Applicant was born in Albania in 1982;
- Neither of his birth parents were Australian citizens;
- In 1995 he was adopted (in Albania under Albanian law) by an Australian citizen father; and
- his adoptive father had become an Australian citizen (by conferral) in 1955.
Now consider these two propositions of law:
- The legal effect of an adoption (both under Australian law and Albanian law) is that an adopted child is treated as if they were born to their adoptive parents; and
- Section 16(2)(a) of the Citizenship Act says you are eligible to become an Australian citizen if ‘a parent of the person was an Australian citizen at the time of the birth’.
If you thought (as I did) this meant the Applicant was entitled to citizenship then, we would have fallen into the same error made by the AAT. The Minister appealed the AAT decision and the matter eventually found its way to the Full Federal Court.
The Full Court found that section 16(2)(a) required focus on the factual situation at birth (and not on a “deemed” position). The Applicant’s adoptive father was not present at his birth and he didn’t commence any relationship with either the Applicant (or his mother) until some years later. Consequently, there was no entitlement to citizenship.
The Court clearly recognised the harshness of its decision (but as we all know, courts can only apply the law):
[40] Thus, children adopted in Australia before 1984 have no such pathway to citizenship. [There were 1984 amendments recognising adopted children]
[41] These examples make good the Minister’s proposition that Parliament has chosen, by the text and structure of the statute, the pathways to Australian citizenship, including for those who are adopted children. They are not all encompassing. There are some arbitrary lines drawn. Some might well describe them as unfair or unjust. However, these are the legislative policy choices made by Parliament.
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by Paul Cutler | Jun 22, 2021 | Uncategorized
Whe
n I first read the decision in Plaintiff M7/2021 v Minister for Home Affairs [2021] HCA 14 , my first thought was that it was unusual because it was a single judge (Gordon J) final decision. That came about because, having missed the deadline for merits review in the AAT (by 1 day due to a miscalculation), the High Court (provided some procedural hurdles about time extensions were overcome), was the only Court with jurisdiction to review the delegate’s decision.
The case involved a Pakistani man who sought protection on the basis of his homosexuality. The delegate found that he had fabricated his claim. The basis for that finding was the man’s social media accounts which had several photos of him with male friends. The assumption made, was that the man was openly gay in Pakistan and that his family and friends knew and supported him.
Section 57 of the Migration Act is a procedural fairness provision. The extent of procedural fairness varies depending on the circumstances. However, s57 imposes obligations on the Minister to give to the applicant particulars of relevant information, to ensure as far as is reasonably practicable that the applicant understands why the relevant information is relevant to consideration of the application, and to invite the applicant to comment on it
In the present case, neither the interview between the delegate and the plaintiff, nor the letter sent to the plaintiff, provided particulars of the relevant information ( the open source social media information) sufficient to enable the plaintiff to understand why the information was relevant so he could meaningfully respond. In other words, the obligation under section 57 wasn’t met. As a result, a jurisdictional was found and the delegate’s decision was quashed.
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by Paul Cutler | May 27, 2021 | Uncategorized
It is not difficult to imagine that being an alcohol merchant in Iran might not be the safest choice of profession.Militant groups frequently target alcohol merchants for religious reasons. The issue arises as to whether that is a sufficient basis to enliven Australia’s obligations to provide protection to the Applicant.
You might initially think that persecution could easily be avoided with a change of profession. However, Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 is authority for the principle that “a fear of persecution for a Convention reason, if it is otherwise well‑founded, remains well‑founded even if the person concerned would or could be expected to hide his or her race, nationality, religion…” (i.e. inherent attributes which are the source of the persecution).
Because his profession wasn’t an “inherent attribute” Appellant S395 didn’t help him and his claim to protection as a convention refugee under section 36(2)(a) was unsuccessful.
However, what about his claim for complementary protection under section 36(2)(aa) Migration Act? Complementary protection requires there to be a real risk of suffering significant harm. The issue which the High Court had to decide (in DQU16 v Minister for Home Affairs [2021] HCA 10) was whether Appellant S395 also applied to complementary protection claims. In other words, even if he changed profession would he still be entitled to complementary protection?
The short answer is “no”. The High Court made it clear that the statutory questions to be considered under 36(2)(a) and 36(2)(aa) are different and the principle in Appellant S395 should not be extended to where the modification of a person’s behaviour is irrelevant to a protected characteristic.
You can read a fuller explanation of the reasons commencing at paragraph [18] of DQU16.
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Migration law is complicated enough at the best of times. It gets worse when there are (often) overlapping review proceedings on foot and multiple visa applications. Ms Moorcroft (who is a NZ citizen) was removed from Australia after her special category visa was cancelled in January 2018.