Case Law Updates

Federal Court (Full Court): Appellant's licence was terminated, after which he applied to the (1st) AAT, which affirmed original decision after a hearing. FCCA remitted the matter to the (2nd) AAT, which also carried out a hearing. 2nd AAT was reconstituted by another Member (3rd AAT) and then affirmed Board's decision. Was 3rd AAT required to afford the Appellant a further hearing? Could any findings by 1st AAT bind the 3rd? Was 3rd AAT allowed to consider 1st AAT's hearing transcript? Could AAT authoritatively determine the limits of its own authority?

Federal Court. Was it permissible for the delegate to consider, for the purpose of r 2.20(17)(c) of the Migration Regulations 1994 (Cth), that the Appellant had not signed a request for removal, was not in immigration detention and had a pending application for judicial review?

Federal Court. Does the word "detain", as used in ss 189 and 196 of the Migration Act 1958 (Cth), mean "lawfully detain", with the result that the making of an order compelling the performance of the "duty" imposed by s 198 is not the sole remedy for an abandonment of the lawful purposes of detention contained in s 196(1) and that therefore another available remedy would be an order for the release of a non-citizen from immigration detention? Was AJL20 plainly wrong?

Federal Court (Full Court): the AAT interpreted r 1.05A of the Migration Regulations 1994 (Cth) to provide that a non-citizen could only be "substantially reliant" on a single person in order to be "dependant" on that person. The Appellant argued to the Court that she could be "substantially reliant" both on the primary applicant and on a non-applicant.

Federal Court. How should the 35 days referred to in s 477(1) of the Migration Act 1958 (Cth) be counted? Was the date of the "migration decision" the date when the Tribunal issued a corrigendum to its decision?

Federal Court (Full Court). Para 8.1.1(1)(a)(iii) of Direction 90 said that decision-makers must have regard to the fact that family violence is viewed very seriously by the Australian Government. Did para 8.1.1(1)(a)(iii) bind decision-makers to view family as very serious?

Federal Court (Full Court). Was the Tribunal's direction, requiring the Applicant to attend and participate in a consultation with a psychiatrist, an impermissible interference with the Applicant's fundamental rights to liberty or privacy? Did the Tribunal have the power to stay the proceedings for non-compliance with its direction?

Federal Court (Full Court). In re-exercising the duty under s 473CB(1)(c) of the Migration Act 1958 (Cth), must the Secretary identify only documents that were within their possession or control at the time that the decision was referred to the IAA by the Minister, or must the Secretary also have regard to the documents in their possession at the time that they re-exercise that duty?

Federal Court (Full Court): As mentioned in previous articles, at least 4 single-judge Federal Court decisions are authorities for the proposition that the materiality test expounded by the High Court in Hossain should not be treated as binary in nature. Now, the Full Court has said something which "might" be interpreted as treating the materiality test as binary. If that is the case, we respectfully disagree and explain why.

Federal Court. In considering Direction No 79 for the purposes of s 501CA(4), should decision-makers consider the consequences of any breaches of Australia’s obligations under international law not only to the non-citizen, but also to Australia? We summarise the answers to this and several other questions.