Case Law Updates

Federal Court (Full Court). In assessing Direction 79, can it be said that, "where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously"?

Federal Court (Full Court). Section 36(1C)(b) of the Migration Act 1958 (Cth) provided: "A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds … having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.”

Federal Court. In Makasa and Brown, FCAFC held that if certain facts satisfy the pre-conditions for visa cancellation under s 501(2) and the Minister decides to exercise the discretion under that provision to cancel a visa, but the Tribunal sets aside that decision, the Minister could not cancel the visa again under that same provision based on the same facts that satisfied those pre-conditions. Is the case here distinguishable on the basis that there was no AAT decision involved?

Federal Court. Does the Federal Court have jurisdiction to hear the application for judicial review insofar as it seeks: declarations that the Minister's decision that the United Nations Committee Against Torture's Interim Measures Request was 'unwarranted' is affected by jurisdictional error; a declaration that Australia owes non-refoulement obligations in relation to the Applicant?

Federal Court. Appellant spent most of his years in Australia without working, due to injury. Did cl 14.1(2)(a)(ii) of Direction 65 require AAT to "consider either the appellant’s will to be productive"? Accepting that cl 14(1) requires AAT "to take into account matters of relevance to whether to revoke the mandatory cancellation of a visa, apart from those specified in cl 14(1)", can it be said that "the reasons for a lack of contribution to the Australian community are such a relevant consideration"? Could AAT give lesser weight to the relationship between Appellant and his daughter "because at the time of the Tribunal’s decision she was soon to turn 18"?

Federal Court (Full Court). Does the phrase 'being removed from Australia' in s 36(2)(aa) of the Migration Act 1958 (Cth) extend to voluntary or involuntary removal under s 198 or potentially under other provisions? If there is no prospect of an applicant being removed to their country voluntarily or involuntarily, is the decision-maker nevertheless obliged to consider s 36(2)(a) or (aa) as if removal could occur?

Federal Court. In the context of s 501CA(4) of the Migration Act 1958 (Cth), can it be said that, in "taking into account future potential costs associated with the possible incarceration of the applicant while considering the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct, the Tribunal has had regard to an irrelevant consideration"?

Federal Court. Did the Tribunal commit a jurisdictional error in finding under cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) that the First Appellant was not a genuine applicant for entry and stay as a student, in the absence of any finding that she intended to apply for a permanent visa, did not intend to complete the course of study in question or that she was a “fake student”?

Federal Court (Full Court). Is it "permissible for the Court to speculate as to how the Tribunal might have reasoned or what conclusions it might have reached if it had not made the error in question"?

Federal Court. Once an act is made to detain a person under s 189 of the Migration Act 1958, is the continuation of that detention also an act under s 189? If so, is the continued detention of a person under s 189 a "migration decision", with the result that the FCA does not have original jurisdiction in an application for a writ in the nature of habeas corpus? If so, does the FCA have a residual original jurisdiction to determine whether a habeas corpus applicant is a person to whom s 189(1) can validly apply? Can 189(1) be applied by reference to a hypothetical officer? Was the Applicant "born in Australia" for the purposes of the Australian Citizenship Act 1948, despite being born in the Cook Islands? Was the Applicant an Aboriginal Australian? Were enrolment on the Commonwealth electoral roll and the issue of an Australian passport determinative of whether Applicant was a citizen?