Case Law Updates

Federal Court. Was it impossible for the Applicant to demonstrate the testing of his rehabilitation in the community, as he had not been in the community, with the result that the finding about lack of testing in the community was illogical?

Federal Court (Full Court). In the context of s 501CA(4) of the Migration Act 1958 (Cth), the Tribunal said: "the Tribunal does not consider that drugs are as readily available in detention as they are in the community". Was that a finding for which specific evidence or other material was required? Or could it be made based on the Tribunal’s personal or specialised knowledge?

Federal Court (Full Court). Do the High Court, the Federal Court and/or the Federal Circuit Court have jurisdiction to review decisions under s 501(3A) of the Migration Act 1958 (Cth)? Does XJLR support a conclusion that the FCA has jurisdiction to review the validity of a delegate’s decision under s 501(3A) in the context of an application for judicial review of a decision under s 501CA(4)?

Federal Court. Can it be said that a protection "claim based on the need to support one’s family is more likely to “clearly emerge” from the material given the fundamental relevance of the matter in human terms"? Does the "review material" before the Immigration Assessment Authority include the delegate's decision?

High Court. Does the practice in the Federal Court (FCA) of hearing an extension of time application together with argument on the substantive application require the FCA to avoid "conflating the two applications by refusing to extend time on the basis of a final determination of the issues raised by the substantive application, instead of by reference to ... what was necessary in the interests of the administration of justice"? If so, is the FCA limited to an impressionistic assessment of the merits of the substantive application?

Federal Court (Full Court). Is r 2.55(3) of the Migration Regulations 1994 (Cth) inconsistent with s 494A(1) of the Migration Act 1958 (Cth) and therefore invalid? For the purpose of r 2.55(3)(c), could a prison’s post office box address also be the post office box address of one of its inmates, in the absence of evidence that the involuntary nature of detention impacted on the ability of inmates to receive mail sent to the address of the prison?

The MARA accepted that the "complaint may not turn on whether a conflict of interest actually arose". But could the very response by the RMA in relation to that complaint lead the MARA to find that the RMA failed to "recognise either the potential for a conflict of interest to arise or consider her position and conduct if such were to arise"? If so, could that finding lead the MARA to decide that the RMA's conduct represents a risk to consumers?

Federal Court. The Appellants made invalid protection visa applications and then validly applied for visas subclass 785. Is the question of whether the Appellants abandoned a claim for the purpose of the valid visa applications a matter of fact? Did they abandon that claim? Was MZYQZ v Minister for Immigration and Citizenship [2012] FCA 948 analogous to the facts of the present case?

Federal Court. In Ibrahim, the FCAFC held that, although s 501BA(3) removed the obligation to provide natural justice, it did not prohibit it being provided. Unlike Ibrahim, the Minister here was aware he had the option of providing natural justice, but chose not to. Was that "choice" given to the Minister on the condition that it be exercised legally reasonably? Was the Minister required under s 501BA to consider the submissions made and evidence given by the Applicant to the Tribunal?

Federal Court (Full Court): The mandatory cancellation provision, s 501(3A), was inserted into the Migration Act 1958 (Cth) in 2014 and obliges the Minister to cancel a visa if he/she is satisfied that a non-citizen has a substantial criminal record and is serving a full-time sentence of imprisonment. "What happens, then, where the non-citizen is serving a term of imprisonment at the time of the Minister’s decision (after the commencement of the mandatory visa cancellation scheme), but the non-citizen has a “substantial criminal record” only because of a different sentence of imprisonment that was served exclusively before the commencement of that scheme? Is the non-citizen’s visa liable to mandatory cancellation in these circumstances?"