Case Law Updates

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?

Federal Court. Will the Court only grant a stay of Tribunal proceedings when its supervisory jurisdiction is involved, and where there are shown to be “exceptional circumstances”?

Federal Court. Despite the substantial overlap in the considerations that are taken into account in exercising the discretion to refuse to grant a visa under s 501(1) of the Migration Act 1958 (Cth) and those taken into account in an exercise of the power conferred by s 501CA(4) to revoke a mandatory cancellation decision, and that fact that both powers are to be exercised by reference to Direction 110, are those powers distinct and different in material respects?

Federal Court. Does the fact that the grant of an injunction would restrain the enforcement of the law by preventing officers of the Commonwealth from performing a statutory duty, and thereby frustrate the legislative scheme of the Migration Act 1958 (Cth), provide a strong reason not to grant an interlocutory injunction in the present case?

Federal Court. Does use of the word “means” in cl 4(1) of Direction 110 limit the definition of “family violence” to the two types of conduct as described, namely conduct that "coerces or controls a member of the person’s family" or "causes the family member to be fearful"?

Federal Court (Full Court). Is the question of whether the appellant was denied procedural fairness because he was not reminded of the privilege against self-incrimination the same as the question of whether what occurred was “material”?