Case Law Updates

Federal Court. Can it be said that "an exercise of power under s 501(3A) [of the Migration Act 1958 (Cth)] is invalid where, objectively, a sentence of imprisonment of 12 months or more existing at the date of the cancellation decision is subsequently reduced on appeal to less than 12 months"?

Federal Court. Are the formative years confined to the period of a person's life when they were a child?

Federal Court. Given the Tribunal's extensive references to the Applicant's drug addiction throughout its reasons, can it realistically be supposed that the Tribunal overlooked that addiction in concluding generally that he was "apparently in good health" for the purpose of cl 9.2(1)(a) of Direction 90?

Federal Court: The Applicant argued that: Mr Dutton was not constitutionally permitted to make a decision by reason of not being allowed to have sat in the Parliament; the Full Court's decision in Ibrahim should be followed; the Minister's comment on radio conveyed apprehended bias. The Minister argued that Ibrahim was wrongly decided or, alternatively, that it should be distinguished on the basis that, in Ibrahim, it was the Assistant Minister who made the impugned decision.

Federal Court. In determining the likelihood or prospect of the Applicant's removal from Australia in the reasonably foreseeable future, was it "appropriate to use evidence about how long other removals have taken, how long inquiries have taken, how long responses to inquiries have taken" as evidence of reasonableness?

Federal Court. In determining whether it was legally unreasonable for the Tribunal not to adjourn the review, was it relevant that: the Appellants were self-represented; there was no time sensitive aspect to the Tribunal’s review, as the visa and review applications had been on foot for a long time; the Tribunal advised the Appellants only a few weeks before the hearing that it would be considering a provision not considered by the delegate? Can a request for an adjournment be implicit, depending on the circumstances?

Federal Circuit Court. Although cl 9.d of Direction 69 refers only to the negative effect of military obligations in an applicant's home country, does the GTE criterion in cl 500.212(a) also encompass any positive effects of such obligations? Was the obiter dicta in MZACP at [33] and [181] according to which errors in the form legal unreasonableness are material by definition and therefore jurisdictional limited to errors in the "ultimate decision", therefore excluding errors in findings of fact?

Federal Court (Full Court). Does s 500(6H) of the Migration Act 1958 (Cth) prevent the Tribunal from "having regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing"? Does the Tribunal have a discretion to adjourn the review so that a notice in accordance with s 500(6H) can be given?

High Court. Is there a "principle in Australian common law respecting the single legal personality of spouses"? In other words, do husband and wife form a single person at common law? Does or did the Australian common law include "a rule by virtue of which the common law of conspiracy does not apply to spouses"?

Federal Court: appellant failed to attend Tribunal hearing; Tribunal dismissed the application for non-appearance; appellant provided a medical certificate that was not 'properly completed'; Tribunal found appellant did not have sufficient explanation for non-appearance and did not reinstate proceedings