Case Law Updates

Federal Court. Did the Tribunal err in considering that paragraph 8.1.1(1)(b) mandated a finding that the applicant’s conduct in obstructing police was “serious”? Did para 8.3(2) of Direction 110 direct attention to the impact on the non-citizen of the loss of any other ties to the Australian community?

Federal Court. Was Australia's agreement with Nauru for the removal of 3 individuals invalid, with the result that s 76AAA(4) of the Migration Act 1958 (Cth) was not enlivened?

Federal Court. For the purpose of cl 892.212(c) of Schedule 2 to the Migration Regulations 1994 (Cth), may financial statements prepared in accordance with accounting standards provide evidence of the value of the net assets of a business? If so, and the financial statements prepared for a fiscal year overlap only partially with the period described in cl 892.212(c), is a period different from the period provided for in the provision acceptable?

Federal Court. Can the power in s 501BA(2) of the Migration Act 1958 (Cth) only be exercised within a reasonable time after the original decision? If so, is the ultimate question whether the power under s 501BA was exercised within a reasonable time, by reference to the entire period between the original decision and the decision made by the Minister, instead of by reference to sub-periods within that entire period?

Federal Court (Full Court). Did the discretion in s 32(4) of the AAT Act relate to persons required to appear before the Tribunal, but not to parties? May the word “appear” in s 32(1) of the AAT Act "be understood as invoking concepts of agency, such that the party may be taken to adopt and to be bound by the choices of the representative in the presentation of his or her case"?

Federal Court. Is the exercise of the power in s 501BA(2) of the Migration Act 1958 (Cth) "subject to a requirement that it be exercised within a reasonable time having regard to the purpose for which the power was conferred and the circumstances in which it falls to be exercised by the Minister"? Is the Minister required to consider the effect of any delay in making a decision under s 501BA?

Federal Court. Was the Minister's decision under s 501BA of the Migration Act 1958 (Cth) "legally unreasonable in that he failed to consider (or deferred consideration of) the applicant’s protection claims, despite the applicant being unable to make a protection application by reason of being barred by operation of s 48A of the Act"?

Federal Court. Must the power in s 501BA of the Migration Act 1958 (Cth) be exercised within a reasonable period of time? May satisfaction of the preconditions to the exercise of the power in s 501BA arise by consideration of matters that have arisen after the s 501CA decision?

Federal Court. In determining whether a time extension to file a judicial review application should be granted, can it be said that "the applicant made a decision to pursue revocation of the decision, and that such a course might be considered a waiver or election in relation to seeking judicial review, or at least should weigh strongly against the applicant"?

Federal Court. Was it legally unreasonable for the Minister to conclude that a certain factual situation persisted, without considering whether the age of the evidence made it safe to so conclude?