Case Law Updates

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?

Federal Court. In the context of s 501CA(4) of the Migration Act 1958 (Cth), did the Tribunal err in assessing the legal consequences of its decision in that it wrongly found that indefinite exclusion from Australia under special return criterion 5001 of Schedule 5 to the Migration Regulations 1994 (Cth) was an intended consequence of the cancellation of his visa by operation of law and thus necessarily of neutral weight?

Federal Court. In establishing a prima face case for the purpose of an interlocutory injunction, in circumstances where there is a single judge decision against it, does the existence of an appeal from that decision, "and the fact that the High Court ordered its removal, give reason to think that there may be an arguable controversy about the correctness of [that decision]"?

Federal Court. Are there situations where a lack of resources may explain the period taken to make a decision under s 501BA(2) of the Migration Act 1958 (Cth), but where the decision still has not been made within a reasonable time?

Federal Court. Might legal unreasonableness (in the sense that the result itself bespeaks error) be found on the basis that there is no plausible justification for the timing of a decision under s 501BA(2) of the Migration Act 1958 (Cth) that is otherwise within power?