Case Law Updates

Federal Court. Is the privilege against self-incrimination a fundamental common law right or merely a rule of evidence only available in court proceedings? Do the AAT Act or the Migration Act give merits review applicants the privilege against self-incrimination? Is AAT required to warn self-represented applicants about the invocation of the privilege? We summarise that and several other questions.

Federal Court (FCA). Can a court grant mandamus by way of interlocutory relief? Does the FCA have jurisdiction or power to grant mandamus compelling...

Federal Court. Can it be said that "the generally serious consequences of refoulement – but not the particular consequences in an individual case – are taken into account in giving meaning and content to the requirement that there be “serious reasons for considering”" pursuant to s 5H(2)(a) of the Migration Act 1958 (Cth)? How to interpret Articles 22(1) and 25(3)(c)-(d) of the Rome Statute of the International Criminal Court, entered into force 1 July 2002?

Federal Court. Does the reasoning of the Full Court in CGX20 require "the conclusion that a victim of offending who advances a claim that the impact on them should the cancellation of an offender’s visa be revoked would be positive is disentitled from having that contention and their interest as a victim taken into account in the application of cl 14.4 of Direction No 79"?

Federal Court (Full Court). The Full Court summarised the legal principles concerning s 501CA(4)(b)(ii), which provides as follows: "The Minister may revoke the original decision [to mandatorily cancel a visa under s 501(3A)] if ... the Minister is satisfied ... that there is another reason why the original decision should be revoked".

Federal Circuit Court: the 'error made by the Tribunal was that it stopped short of assessing whether it was “unlikely” that the grant of the visa would result in undue cost or prejudice. Its analysis was entirely focused on the possibility'

Federal Court (Full Court): in a separate  (but not in dissent) judgement, Mortimer J held that the High Court's materiality test in Hossain did not apply to procedural fairness and legal reasonableness

Federal Court. In AJL20, the FCA held that, as the duty to remove a non-citizen from Australia under s 198 of the Migration Act 1958 (Cth) is not country specific, the attempts to remove a person should not be limited to their home country. What factors informed the answer to the question of whether the Minister discharged the duty to remove the Applicant as soon as reasonably practicable? Was AJL20 plainly wrong?

Federal Court. AAT set refusal aside, finding Applicant met s 36(2)(aa). On remittal, in considering exercise of discretion under s 501(1), Minister "accepted" AAT had found s 36(2)(aa) was satisfied and "noted" Applicant's submission to Minister relating non-refoulement obligations. Can it be said that Minister's acceptance that the AAT had found that s 36(2)(aa) was met should not be viewed as acceptance by him of substratum of AAT's finding? Can it be said that the use by the Minister of term "note" should not be read as the Minister stating that he agreed with the substratum of the Applicant's submissions, with the consequence that the Minister failed to meaningfully assess the Applicant's submissions and thus failed to discharge his discretion? For the purposes of discretion under s 501(1), is Minister entitled to disagree with or adopt AAT's findings?

Federal Court: 'if the evidentiary requirements were satisfied simply by a statutory declaration made by [a nurse], who is a non-treating [nurse], the words [under IMMI 12/116] in relation to treatment would be otiose'