Case Law Updates

Federal Court (Full Court). The power under s 501CA(4) of the Migration Act 1958 (Cth) can be exercised in the circumstances described in s 501CA(1), which provides as follows: "This section applies if the Minister makes a decision ... under subsection 501(3A)" (emphasis added). If a visa is cancelled under s 501(3A) by a delegate, does that mean that a decision cannot be made under s 501CA(4)?

Federal Court (Full Court). Does s 198AD(2) of the Migration Act 1958 (Cth) apply to a person who has been the subject of a favourable decision under s 46A(2)? Can a court "completely remove the capacity of those legally responsible for the detention of an individual to determine where that individual should be held"?

Federal Court. Can it be said that "s 417 was exclusively intended to deal with decisions made under s 415 and that s 501J would not be engaged"? Can it be said that "a decision of the IAA was not intended to constitute a “decision of the Administrative Appeals Tribunal in relation to an application for, or the cancellation of, a protection visa” (s 501J(2)) despite the IAA being “established within” the AAT (s 473JA)"?

Federal Court. Was it legally unreasonable for the Assistant Minister to adopt the assessment of a psychologist "on the risk of the applicant reoffending, undertaken nine months previously, in the absence of evidence that the applicant had addressed certain matters to reduce that risk, to make a current assessment on risk"?

Federal Court: The rules that govern an application for injunction at first instance are not the same as those that operate on appeal. This court decision summarises the general principles that govern an application for injunction pending the outcome of an appeal.

Federal Court. In Katoa, the High Court decided that the Federal Court was not limited, in assessing the merits of a judicial review application, to a reasonably impressionistic level of such merits, when considering whether to grant a time extension within which to bring that application. Is the correct approach to consider the proposed ground of appeal at a reasonably impressionistic level?

Although the AAT will defer dealing with late applications in the MRD pending an appeal to the Full Court of the Federal Court, that does not necessarily mean that late applicants should defer lodging their review applications any further

Federal Court (Full Court): Q1 to the FCAFC: did Minister personally spend about an hour or only 11 minutes considering whether to cancel a visa? Q2: should the Court could draw a Jones v Dunkel inference that the Minister spent only 11 minutes? Q3: if the Court finds that Minister spent only 11 minutes, was that sufficient for the Minister to give proper, genuine and realistic consideration to the materials provided by the Department?

Federal Court (Full Court): In 2012, delegate decided not to exercise the discretion under s 501(1) of the Migration Act 1958 (Cth) to refuse the Appellant a bridging visa and notified him of it. In 2013, Appellant was granted a partner visa. In 2016, Appellant was convicted for conduct occurring for 7 years until 2009. In 2018, Minister found that Appellant failed the character test due to the 2016 conviction and personally exercised the discretion to cancel his visa under s 501(2). Did the 2012 decision estop the Minister from making the 2018 decision?

Federal Court. Is the question of indefinite detention a relevant consideration in the exercise of the task under s 36 of the Migration Act 1958 (Cth)?