Case Law Updates

Federal Court. Was it "uncontroversial that people in immigration detention are subject to a much greater level of surveillance and monitoring than people in the community generally"? Would the complaint that the Tribunal took into account an irrelevant consideration have force "if the fact that the applicant’s ability to avoid drug use had not been “tested” was the Tribunal’s only basis for finding that he posed an elevated risk of reoffending"?

Federal Court. Was the Tribunal required to identify, in its determination of both the “serious reasons” in s 5H(2) and the “serious non-political crime” in s 5H(2)(b) of the Migration Act 1958 (Cth), the alleged “crime” and analyse its elements? Although s 5H(2) required the decision maker to "consider" whether the elements in ss 5H(2)(a), (b) or (c) are met, can it ask itself whether it "suspects" or "believes" that they are met?

Federal Court. Was it irrational or legally unreasonable for the Tribunal not to identify for the purpose of s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) a rational or intelligible basis for not giving any weight to the applicant’s representations as to her family ties in favour of revocation of the mandatory cancellation of the applicant’s visa?

High Court: Did availability of alternative avenue of judicial review to FCA preclude application to HCA? Applications to FCCA under s 476(1) must be made within 35 days of migration decision (s 477(1)), unless extension is granted (s 477(2)). Does s 477(1) limit the scope of jurisdiction conferred on FCCA by s 476(1)? Or does it merely limit the exercise of that jurisdiction? Did HCA adopt FCFAC's decision in MZABP? In assessing time extension application, was FCCA's "inference about a self-represented litigant's state of understanding of court procedure ... available to be drawn based solely upon the fact that [Plaintiff] has previously brought proceedings in that court"?

Federal Court. Should there be "unnecessary obstacles placed in the way of those who identify as First Nations People [such an adverse costs order] in proving what they contend is their rightful status under the Constitution"? Can it be said that the fact that a non-citizen's "legal representation was provided on a conditional basis with recoverable fees limited to any amount of costs paid by the respondent pursuant to an order of the Court tends neither for nor against the exercise of discretion [to award costs] in this case"?

Federal Court (Full Court): in a case where the Minister refused the primary applicant's protection visa application but did not decide the secondary applicant's application, the Tribunal did not have jurisdiction in relation to the secondary applicant

Federal Circuit and Family Court. May a court "award costs where an underlying dispute is rendered moot, even where a decision is not delivered"? If so, where "the relevant supervening event occurs after a trial on the merits, with full argument and submissions from the parties, but before the decision is handed down", will those arguments hold greater weight in the decision whether to make a costs order? Should no order be made, as both sides got what they wanted?

Federal Court. Is it for a court to judge, pursuant to s 189 of the Migration Act 1958 (Cth), whether "an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen", "based on the entirety of the evidence before it and not just the evidence that may have been available to the detaining officers"?

Federal Court. Should Direction 65 be read down to be consistent with the Family Law Act 1975? Was AAT required to "give weight to a right, value or interest recognised by statute, international instrument or the common law"? Is Direction 65 inconsistent with that Act? Does the Convention on the Rights of the Child inform the interpretation of paras 13(2)(b), 13.2(1) and 13.2(4) of Direction 65? Is Direction 65 delegated legislation? If not, is it anyway sensible to assume it intended to give effect to Australia's obligations under international law? Is Direction 65 inconsistent with the common law principle of parental responsibility?

Federal Court. Will habeas corpus lie where, although a person is not an unlawful non-citizen, an officer detains him/her on the basis of a reasonable suspicion that he/she is an unlawful non-citizen? Must the suspicion that a person is an unlawful non-citizen "be objectively justifiable on the basis of relevant material, including that material which is discoverable by efforts of search and enquiry that are reasonable in the circumstances"?