Case Law Updates

Federal Court. If the Minister personally makes a decision under s 501CA(4): is he required "to consider and understand the representations received" for himself, even if he is given an accurate summary of such representations; must he give "reasons as to why the expectations of the Australian community should count against revocation"? Must s 501CA(4) decisions  be made within a reasonable period of time? May the ongoing validity of a decision under s 501(3A) depend upon due and prompt performance of the power under s 501CA(4)?

Federal Court. The Minister submitted to the Tribunal that it should give no weight to the statements by the applicant's witnesses, as they had not been made available for cross-examination. Was the applicant denied procedural fairness in circumstances where his representative: did not object to the course proposed by the Minister or indicate to the Tribunal that he was caught by surprise by that submission; was asked by the Tribunal whether he wished to respond to any points made by the Minister’s representative?

Federal Court (FCA). Following unsuccessful requests to be removed from Australia under s 198(1) of the Migration Act 1958 (Cth), the Applicant applied to the FCA for mandamus directing the Commonwealth to do so. Subsection 476A(1) provided that, despite any other law, the FCA's "original jurisdiction in relation to a migration decision" was limited to the matters under s 476A(1)(a) to (d). Is the refusal to discharge the obligation under s 198 a "migration decision", with the result that the FCA lacked jurisdiction?

Federal Court (Full Court). Is the question of whether the appellant was denied procedural fairness because he was not reminded of the privilege against self-incrimination the same as the question of whether what occurred was “material”?

High Court. Can a couple live "separately and apart" even when they reside in the same home? Is it possible for a couple who maintain "separate residences" to not be living separately and apart, so long as they live as a "single household"?

Federal Court. In determining under s 362B(1C)(a) of the Migration Act 1958 (Cth) whether it was "appropriate" to re-instate a Tribunal application dismissed for non-appearance at the hearing, were "the merits of the substantive application, and in circumstances where the application was dismissed for a failure to appear at a hearing, the explanation for it", relevant considerations?

Federal Court. Is there a principle of constructive refoulement in Australian law?

Federal Court (FCA). The Appellant's judicial review application to the Federal Circuit Court was dismissed. He then appealed that decision to the FCA. During FCA proceedings, the Minister identified an error by the IAA which had not been identified by the Appellant and conceded the appeal on that basis. Should the Appellant obtain an order for costs at first instance?

Federal Court: AAT mistakenly added 1 week to the 84-day deadline for making a decision (s 500(6L)) and neither Applicant nor Minister noted it at directions hearing. Minister's advocate noted the mistake only after the actual deadline and before the mistaken deadline and notified Tribunal, which nevertheless proceeded to provide reasons for affirming the original decision. Did the AAT make a decision? Did the Federal Court have jurisdiction for a judicial review application? If so, what remedies were available?

Federal Court. "Where there has been inordinate delay and that consideration weighs so heavily against an extension of time being granted" in an application for judicial review, does it necessarily follow that the applicant must demonstrate "something exceptional or out of the ordinary in the circumstances of the case to provide a countervailing justification for extending time"? If so, would it be difficult to demonstrate that circumstances are exceptional if the case sought to be advanced were not "exceptional"?