Case Law Updates

Federal Court (Full Court). Is r 2.55(3) of the Migration Regulations 1994 (Cth) inconsistent with s 494A(1) of the Migration Act 1958 (Cth) and therefore invalid? For the purpose of r 2.55(3)(c), could a prison’s post office box address also be the post office box address of one of its inmates, in the absence of evidence that the involuntary nature of detention impacted on the ability of inmates to receive mail sent to the address of the prison?

Federal Court (Full Court). Were the the answers to the interrogatory sought before the primary judge "capable of forming the basis for an inference that persons in the appellant’s situation are not removed from Australia to Iraq, even though s 197C of the Act (as it then stood) removed non-refoulement obligations as a reason to not comply with s 198" and an inference that the Minister "had personal knowledge of the number of persons in respect of whom Australia owed non-refoulement obligations who had been involuntarily returned to Iraq"?

Federal Court (Full Court). Appellant applied to FCCA for judicial review (JR) and extension of time within which to apply for JR. In dismissing time extension application, FCCA engaged in more than an impressionistic evaluation of merits of proposed grounds of review. Did FCCA make jurisdictional error by doing so? Can FCCA hear applications under ss 476 and s 477(2) together? Was the FCCA's error not material in that, had it not misconceived s 477(2), it would have decided the JR application against Appellant anyway?

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 (Full Court): Where a conviction or sentence is the foundation for the exercise of power by a decision-maker, can a challenge be made to the essential facts on which the conviction or sentence was based? If not, is the position different in the context of s 501CA(4)? Should AAT have considered "evidence that went beyond the essential facts underpinning his conviction and sentence"? Can a decision-maker, for the purposes of s 501CA(4), refuse to accept a non-citizen's challenge to a fact on which a sentence is based, on the one hand, and use that challenge against the non-citizen in the context of assessing remorse, on the other hand? Can the difference between sentence & conviction play any role in answering whether the facts on which they were based might be challenged? Subsequent FCA decision seems to have impliedly distinguished this decision.

Federal Court (Full Court). Do the words “a danger” in s 36(1C) of the Migration Act 1958 (Cth) refer to more than trivial harm? Can the expression “the Australian community” used in s 36(1C)(b) refer to a danger to an individual within that community? Is the word 'danger' in s 36(1C)(b) a function of probability and consequence?

Federal Court (Full Court). Was the obligation under s 39(1) of the AAT Act to ensure procedural fairness higher than that provided by the common law? Must the content of a “reasonable opportunity” in s 39(1) of the AAT Act be construed in light of the terms of s 500(6L) of the Migration Act 1958 (Cth)?

Federal Court. In considering Direction No 79 for the purposes of s 501CA(4), should decision-makers consider the consequences of any breaches of Australia’s obligations under international law not only to the non-citizen, but also to Australia? We summarise the answers to this and several other questions.

Federal Court. In an FCA decision we recently summarised, the Minister's application for leave to appeal from a decision where he was ordered to answer an interrogatory aimed at determining whether he had turned his mind to a decision was dismissed. In a different case extracted in this article, one of the questions to the FCA was whether it should use its discretion to refuse to grant leave to the Applicant for an interlocutory application seeking a very similar interrogatory, because of the “impracticalities” presented by the possibility of portfolio Ministers being overwhelmed with interrogatories.

Federal Court: as reported by Migration Law Updates in Dec 2018, the Federal Circuit Court had held that the reference to "2 years" under reg 1.15AA of the Migration Regulations 1994 was linked to the "medical condition", not the "assistance" to be provided by the carer. That decision was appealed.