Case Law Updates

'I am satisfied that the power conferred upon the AAT under s 29(7), (8), (9) and (10) [of the AAT Act] to extend time applies in relation to applications for review of a Part 5 – reviewable decision under s 347(1)(b)(i) of the [Migration Act]'.

Federal Court (Full Court). Can it be said that, "when determining whether the primary court can be satisfied that it is “necessary in the interests of the administration of justice” to make an order [under s 477(2) of the Migration Act 1958 (Cth)] to extend the 35 day period, the scope of the power, so far as it engages the Court in a consideration of the substantive grounds supporting the claim for s 476 relief, is confined to simply determining whether the “grounds on their face … are plainly hopeless”?

Federal Court: May ss 473DD(a) and (b)(ii) of the Migration Act 1958 (Cth) overlap? Further, IAA refused to consider new info, saying: "The mere fact that some of the applicant’s siblings have been granted protection on the basis the applicant claims is the same as his own claims, has no probative value when assessing the applicant’s claims for protection". Did IAA, in effect, say that "in no circumstances could evidence" relating to the siblings "have probative value when assessing the applicant’s claims for protection", thus amounting to jurisdictional error?

Federal Court: This judgement is about a visa which was refused in 2017, when the "old" version of s 338(2)(d) was in effect. However, the judgement referred to the "new" version of that provision, which only came into effect in December 2018. This case illustrates how challenging it is for anyone to keep up with the pace of change in our industry. Fortunately, it seems that the reference to the "new" provision did not make a difference in the outcome of the case, given the circumstances.

High Court. Does functus officio address the capacity, or authority, to adjudicate a matter, whereas estoppel addresses the capacity of the litigants to litigate a matter?

OMARA: "I am satisfied that the Agent knowingly entered into arrangements that facilitated the provision of unlawful migration assistance... I have taken into account that the applications submitted to the Department on behalf of these sponsors were handled through the Agent’s business and that she was the nominated migration agent. It follows that I am satisfied the Agent knew, else ought to have known, immigration assistance was provided unlawfully in relation to their respective matters".

Federal Court (FCA). Following unsuccessful requests to be removed from Australia under s 198(1) of the Migration Act 1958 (Cth), the Applicant applied to the FCA for mandamus directing the Commonwealth to do so. Subsection 476A(1) provided that, despite any other law, the FCA's "original jurisdiction in relation to a migration decision" was limited to the matters under s 476A(1)(a) to (d). Is the refusal to discharge the obligation under s 198 a "migration decision", with the result that the FCA lacked jurisdiction?

High Court. Should the hypothetical, fair-minded lay observer be attributed with knowledge "that barristers are professional members of an independent Bar who do not identify with the client; that judges are usually appointed from the senior ranks of the Bar; and that it may be expected they will have personal or professional associations with many counsel appearing before them"?

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 (Full Court). Was the proposition that indefinite detention would constitute a breach of Australia’s international obligations a merely arguable consequence of the Minister’s decision, instead of an inevitable or certain legal consequence? If so, does that suffice to distinguish the Full Court decisions in CWY20 and ENT19? Were such decisions impliedly overruled by the High Court in Plaintiff M1?