Case Law Updates

Federal Court.The OMARA cancelled the Respondent's registration as a migration agent under s 303(1)(a) of the Migration Act 1958 (Cth). The Respondent then sought review by the Tribunal, pursuant to s 306. Did the Tribunal have power under s 311A to bar the Respondent from being a registered migration agent, in circumstances where the decision under review had been made under s 303(1)(a)?

Federal Court (Full Court). In determining whether a "claim" estoppel arises, can different grounds of jurisdictional error be seen as separate causes of action or claims arising out of the one decision? In determining whether Anshun estoppel arises, is the principal inquiry "whether the ground of review should have been brought forward in the first proceeding, in the sense that it was unreasonable for the appellant not to have done so"?

High Court. Is the existence of a duty to afford procedural fairness a question of statutory interpretation? Is there a "strong" common law presumption, "generally applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests, that the exercise of the power is impliedly conditioned on the observance of procedural fairness"?

Federal Court. Can it be said that, "once judgment has been reserved, it is only in exceptional circumstances that the Court will subsequently give leave to a party to re-open the case"? Were the circumstances of this case, where the applicant was a self-represented litigant seeking habeas corpus, exceptional? Can it be said that "abuse of process principles can be applied in respect of repeated applications for the issue of writs of habeas corpus within a short time frame"?

Federal Court. Can it be said that, "where the likelihood of different categories of prospective offending or different degrees of prospective harm might be thought to vary, the task required by cl 13.1.2(1) may only sensibly be completed by a decision-maker differentiating the risk in relation to each category"?

Federal Court: AAT affirmed non-revocation of visa cancelled under s 501(3A) of the Migration Act 1958. AAT was bound by Direction 65, cl 14.1(2) of which was identical to cl 14.1(2) of Direction 79. Was it necessary for AAT to sever the following part of cl 14.1(2) in order to align that paragraph with s 197: "Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists"? Did AAT misinterpret cl 13.1.1(1)(b), which is identical to cl 9.1.1(1)(c) of Direction 79?

Federal Court. In Direction 79, primary and other considerations were specified as matters that must be taken into account 'where relevant'. For the purposes of determining whether there has been compliance with Direction 79, is relevance a matter to be objectively determined? Should judicial review applicants identify particular aspects of the reasoning of an administrative decision said to be illogical or irrational and then claim that, as they were material, there was legal unreasonableness?

Federal Court. For the purpose of cl 14.5 of Direction 79, do the factors to be taken into account include any social or economic support available to the non-citizen in the country to which they would be returned in the event of non-revocation under s 501CA(4) of their visa cancellation?

Federal Court. Is the question of indefinite detention a relevant consideration in the exercise of the task under s 36 of the Migration Act 1958 (Cth)?

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?