Case Law Updates

Federal Court. Was the Applicant "entitled to have his claims for protection in respect of Nauru determined and, if found to be well founded, not to be refouled to Nauru", in light of the omission in s 197C of the Migration Act 1958 (Cth) to a reference to s 198AD, despite the Minister's power to take him to Nauru pursuant to s 198AD and despite the fact that the Migration Act does not provide a statutory mechanism to determine such a claim?

Federal Court: There is no common law duty on administrative decision-makers to provide reasons for their decisions. Thus, in the absence of a statutory duty, those decision-makers are not required to provide reasons at all. However, if an administrative decision-maker chooses to provide reasons in circumstances where they are not obliged to do so, can a court on judicial review draw an inference from the fact that the decision record is silent about a particular consideration that such a consideration was not taken into account?

Federal Court (Full Court). Was it open to the non-citizen to "impugn the substantive determination [under s 430] on the ground that the Tribunal’s procedural decision [under s 426A(1A)(a)] affected the legality of the substantive determination by rendering the determination the product of a legally unreasonable process"?

Federal Court. Regulation 2.08A is the regulatory mechanism by which certain applicants may be added to an existing permanent visa application. Did r 2.08A require the Minister to "ascertain or be satisfied that the additional applicant was indeed a ‘dependent child’ of the original applicant"? Must the ‘statement’ required by r 2.08A(1)(c) impliedly be one made in good faith?

OMARA found it: received 2 complaints against an RMA; sent the RMA notices under ss 308 and 309 of the Migration Act 1958 (Cth); and never received a response from the RMA after some months. Can RMAs be sanctioned on the basis of lack of response? What happens to the substance of the complaint?

Federal Court (Full Court). Is the question of whether a person qualifies as “a parent” under s 10B(1) of the Australian Citizenship Act 1948 (Cth) a question of fact to be determined by the Court? Can it be said that, "absent a biological parental relationship, parentage typically is a matter of intense commitment which involves acknowledging that other person as one’s own child"?

Federal Court. Is there a principle of constructive refoulement in Australian law?

Federal Court. Does the term 'immediate family' under cl 14.2 of Direction 79 include parents? If a decision-maker finds one of the factors in Direction 79 in favour of a non-citizen, but the weighing exercise called for by s 501CA(4) nevertheless results in a finding that there is not 'another reason' to revoke a mandatory visa cancellation, can an error in assessing that factor be material in that, had it not been made, additional weight could have been placed on that factor, which could have tipped the scales in the non-citizen's favour?

Federal Court. May there "be overlap between a failure to afford an opportunity to be heard, and a reasonable apprehension of bias on the ground of pre-judgment, because the former may give rise to the latter"?

Federal Court. Appellant had pleaded guilty to manslaughter. In personally deciding under s 501CA(4) whether there was "another reason" to revoke the mandatory cancellation of Appellant's visa, Minister found that "further" offending of a violent nature by the Appellant could result in serious physical harm to members of the Australian community. Was Minister's decision legally unreasonable in that, although Appellant's conduct led to a violent outcome (death), the nature of the conduct was not violent, as there was no intent to harm? Is a subclass 444 visa a "limited stay" visa?