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Legal Theory Assignment (Doc)

Added on - 08 Dec 2020

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LEGAL THEORY
TABLE OF CONTENTSINTRODUCTION...........................................................................................................................1MAIN BODY...................................................................................................................................1CONCLUSION................................................................................................................................9REFERENCES..............................................................................................................................10
INTRODUCTIONMigration Act, 1958 of Australia deals with all legal aspects related with citizenship andvisa application of nation and foreign citizens. This act lays down provision for how applicationsrelated with different issues with entry, presence and departure of person in and from Australia.In this present report, the case of fact related with case Al-Katab v Godwin are discussed. Thefacts which interpreted are related with statutory interpretation and judgement passed. With thisevaluation of section 189,196 and 198 is also carried out as this case was about disagreement oncorrect interpretation of these section with different legal theories related with jurisdiction.MAIN BODYFactsAPPELLANT – AL KatabRESPONDENT – Philippa Godwin (deputy secretary of department of Immigration andmulti culture and indigenous)Ahmed Ali Al-Katab was born in Kuwait and resided there for his whole life except forsome time in Jordan. He was a Palestinians so can not apply for citizenship of Kuwait. He cameto Australia through Vessel and applied for Australian visa. Application by Al-Katab was denied,for granting a visa by immigration department. His appeal to Refugee review, Federal court andfull Federal court was dismissed and decision was upheld.As appellant were not granted a visaso he applied for removal to another countrybut it was difficult to deport him and makearrangements with another nations due to his status of stateless person. And with his non removalfromAustralia due to non-cooperation form foreign nations, his detention was extended toindefinite time period (Donnelly, 2017) And as per 198 sections of Migration act he sought awrit which was rejected. Again prerogative relief was sought by him against immigrationdepartment two of its officers contenting that his detention by immigration official was unlawfulbut same was also dismissed. An appeal against this order was filed in hight court.Section 189:This section defines regulations related with detention of unlawful non-citizens.Anunlawful citizen is a person who is living in the country without any visa.1.In case an officer reasonable suspects, that a person is living in Australia in migrationzone is an unlawful non-citizen, the individual must be detained by that authority.1
2.A person living in Australia but outside migration Zone, officer suspects that he/she iseither seeking to enter in migration zone or if enters there, will be an unlawful non-citizen, the individual must be detained.3.A person in excised offshore place, if suspected to be unlawful non-citizen must bedetained by an officer.3(A). A person in protected area is suspected to be - an unlawful non-citizen or a citizen ofPapua New Guinea, must be detained by officer.4.A person in Australia but outside migration zone, if suspected to be- either seekingentrance in offshore place or enters migration zone, will be an unlawful non-citizen, andmust be detained by officer.5.An officer mentioned in above section 3-4 is a member of Australian defence force.Section 196This section underlay the duration for which a person must be kept in detention.1.An unlawful non-citizen detained under section 189 must be kept in immigrationdetention for a period of until(a) removal of such person under section 198 or 199 from Australia.(aa) a deal with such non-citizen is begun by an officer under section 198AD (3).(b) under section 200, such person is deported.(c) a visa is granted to that person2.For avoidance of doubt, immigration detention of a citizen or lawful non-citizen is notprevented under subsection 1 (Billings, 2015).3.Subsection 1, prevents release of an unlawful non-citizen from immigration detentioneven through court unless a visa is granted to that person.4.In case detention is a result of cancellation of visa, the person shall remain in custodyuntil court determines that it is illegal or such individual is not an unlawful citizen. 4(A).A person who is waiting for his/her deporting and is detained under this section,detention continues to a period till same is determined by court as unlawful.5.Applicability of section 4 and 4 (A) for avoidance of doubts(a) whether the person detained, likely to be removed or deported in foreseeable futurefrom Australia, and(b) whether decision related with visa for a person in detention might be unlawful.2
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