Case Law Updates

Federal Court. Can it be said that the existence of a protection finding, with the result that s 198 neither required nor authorised removal, did not render legally unreasonable the giving of heavy weight in the Applicant's favour to the extent of impediments to removal, particularly because of his statement "that he may request removal to Nepal in light of the other legal consequences of refusal of the visa"?

Federal Court. By stating that Direction 110 required some actions to be taken, did the Assistant Minister proceed on the basis that he was personally required to apply the Direction, thereby making a jurisdictional error?

Federal Court. Can it be said that "the Tribunal’s most scathing criticisms of the applicant’s lawyers’ conduct were quite unjustified"? Would a fair-minded observer "reasonably regard the Tribunal as having launched an unjustified attack on the applicant’s lawyers"? Did the Tribunal effectively take the role of a contradictor?

Federal Court. Did visa subclass 186 "contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant"? Can an employer correct an erroneous nomination withdrawal?

Federal Court. In the context of cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth), can it be said that, since the grant of a student visa would allow the appellants to stay in Australia for only a specified period, a mere change of plans from a visitor visa to make an application for a student visa could not provide evidence of an intention to stay permanently or indefinitely in Australia?

Federal Court (Full Court). In determining that the Tribunal had no jurisdiction to review the decision because of the invalidity of the application, was there a "decision of the Tribunal under section 415" of the Migration Act 1958 (Cth), with the result that the Minister had the power under s 417 to substitute for the decision of the Tribunal?

High Court. Can it be said that "a decision maker, in whom is reposed a very general statutory power or discretion, can reduce the standard of procedural fairness to "nothingness" simply by deciding that the interests of those affected are irrelevant"?

Federal Court. In determining under s 362B(1C)(a) of the Migration Act 1958 (Cth) whether it was "appropriate" to re-instate a Tribunal application dismissed for non-appearance at the hearing, were "the merits of the substantive application, and in circumstances where the application was dismissed for a failure to appear at a hearing, the explanation for it", relevant considerations?

Federal Court. Can it be said that, "given the evidence of the applicant’s statelessness and the purpose of the abandoned child provision, irrespective of the applicant not having been born in Australia, the delegate was required to ascertain whether the applicant possessed the nationality of another country, as an essential step of proving “the contrary” under s 5(3)(b)" of the Australian Citizenship Act 1948 (Cth)?

Federal Court. Is the grant of an injunction that interfered with the performance of the statutory duty to remove unlawful non-citizens from Australia as soon as practicable exceptional, therefore requiring there to be a strong case for the making of the order?