Case Law Updates

Federal Court. Must the deferral of the assessment of non-refoulement obligations to a subsequent protection visa application process be legally reasonable?

Federal Court (Full Court). Are all duties of care discharged by the exercise of reasonable care, without imposing more stringent or onerous burdens? If so, does it necessarily follow that "a duty to achieve a particular result (eg confining the appellant’s detention to a specified duration) is not one that the law of tort would impose"?

Federal Court. In determining whether to grant an interlocutory injunction to prevent the Applicant's removal, is it sufficient that the underlying judicial review proceeding challenge only the discharge of the obligation under s 66, without directly challenging the exercise of the power under s 198 of the Migration Act 1958 (Cth)? Does the FCA have jurisdiction to declare a notification as non-compliant with s 66 of the Act?

Federal Court. Must there be something exceptional about that which is said to be 'in the national interest' under s 501BA(2)(b) of the Migration Act 1958 (Cth)?

Federal Court. Should reasons as to whether to refer an ART decision to the ART's Guidance and Appeals Panel (GAP) usually not be given, for instance because, if a party appeals from that decision to the Court, "there may be some awkwardness in the [ART's] President making detailed findings on matters to be decided by the Court"?

High Court. Is the reference to the act of refusal in s 48A of the Migration Act 1958 (Cth) "simply to an historical fact, that has not been set aside in fact, regardless of its legal effect"? Does s 417 on its face confer a power of substitution only, instead of a power to set aside a decision of the Tribunal? Did the Assistant Minister's act of substitution in s 417(1) have the effect of setting aside the delegate's refusal decision?

High Court. Can it be said that it is "not reasonably open to a decision maker, when exercising their discretion to cancel a visa under s 116 of the [Migration Act 1958 (Cth)], to take into account a failure to respond to an NOICC [Notice of Intention to Consider Cancellation] in a manner adverse to a visa holder, as there is no legal requirement for a person to respond to such a notice"?

Federal Court. Were the tests in ss 34(2)(c) and 34(2) of the Australian Citizenship Act 2007 (Cth) retrospective only, with the assessment of risk of reoffending being of little or no relevance? In such tests, is it generally permissible for decision-makers "to have regard to such deterrence as a factor in the protection of the integrity of the naturalisation process, provided that it is not associated with a substantial purpose of pursuing retribution for or denunciation of the specific conduct engaged in by the person whose citizenship is revoked"?

High Court. The Tribunal found that both claimants were owed protection, and remitted the matters to the Department. Then, without deciding whether to grant them protection visas, the Department granted them other visas. As per NZYQ, removal from Australia was no longer a legitimate non-punitive purpose to keep them detained. Was the processing of their protection visa applications nevertheless a legitimate non-punitive purpose to keep them detained?

Federal Court. Assuming that the power in s 501BA(2) of the Migration Act 1958 (Cth) is required to be exercised within a reasonable time, and that such requirement is not complied with, is the consequence that a writ of mandamus might issue to compel the Minister to make a decision, instead of the power being treated as spent through certiorari?