Case Law Updates

High Court. Does an order for costs in favour of an unincorporated law firm entitle the firm to obtain recompense for legal work performed by an employed solicitor of the firm?

High Court. Was para 8.5(2) of Direction 110 referring to the cancelled visa, instead of a BVR? If a judicial review applicant inadvertently provided the Department with legal advice he had received, and the advice constituted relevant material adverse to him, can this attract an obligation of procedural fairness requiring disclosure to him of his error and an opportunity for him to claim legal professional privilege over the legal advice?

Federal Court. Court ordered that Minister cease to detain the applicant at the Melbourne Immigration Transit Accommodation centre (MITA) due to the risk of covid-19 entering the MITA and then infecting the applicant. In practical terms, this means Minister will need to place applicant at a different detention centre.

Federal Court. Contrary to delegate, AAT found s 36(1C) was met and remitted matter. Minister then personally found Applicant was a danger to the Australian community and refused visa under s 501. Did Minister become "legally bound to apply the reasoning of the Tribunal (absent new circumstances having arisen) in that remitted application more broadly including in respect of his consideration of the Applicant’s representations advanced in reference to s 501". Was the AAT's decision and its reasoning "just another piece of material before him" that the Minister was entitled to place such weight on as he thought fit?

Federal Court: a time of decision criterion for visa subclass 836 is that a medical certificate must state that the person receiving care has and will continue to have a need for direct assistance for at least 2 years. Does it mean that the certificate must be issued shortly before the time of decision? Could the certificate issued in 2010 "reasonably say anything about the degree of impairment of the sponsor 8 years later"? Does a medical certificate expire?

Federal Court. While the AAT was required to treat offending of the type described under cl 13.1.1(1)(a)-(b) of Direction 79 as “very serious”, did it remain for it to allocate weight in respect of such offending relative to all other relevant considerations under s 501CA(4)(b)(ii) of the Migration Act? Are cl 13.1.1(1)(b) and (d) ultra vires s 499 of the Act to the extent that they "required the Tribunal to proceed upon the basis that crimes of a violent nature against women or children are to viewed very seriously, regardless of the sentence imposed"?

Federal Court. Must the power in s 501BA of the Migration Act 1958 (Cth) be exercised within a reasonable period of time? May satisfaction of the preconditions to the exercise of the power in s 501BA arise by consideration of matters that have arisen after the s 501CA decision?

Federal Court. Is a child a party to migration judicial review proceedings only if a person is appointed their litigation representative?

Federal Court. Under s 473CB(1)(b), the Secretary must give the IAA "material provided by the referred applicant to the person making the decision before the decision was made". If a protection visa applicant provided material to a delegate but another delegate refused to grant the visa, can it be said that the material was not given "to the person making the decision"? If the material was given to a delegate by the applicant's representative, can it be said that it was not given by the "referred applicant"? With respect, does this Federal Court decision stand in contrast with the High Court's majority judgement in SZMTA?

High Court (single Justice). Do the words 'benefits the Australian economy' in cl 132.227(2)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) imply a significant benefit?