Case Law Updates

Federal Court (Full Court). Can it be said that "s 91X of the [Migration Act 1958 (Cth)] gives rise to a duty of imperfect obligation, breach of which neither invalidates the FCCA’s earlier decision, nor sounds in a judicial remedy, including declaratory relief"? We summarise the answer to this and several other questions.

Federal Court (Full Court). Should different passages of written submissions be considered by the AAT it in the context of the entirety of those submissions? If the AAT considers that a factor in Direction 79 weighs strongly in favour of revoking a visa cancellation, can an error in assessing that factor be material in that, had the error not been made, the factor could weighed even more strongly in favour of revocation? Was the effect of non-revocation on the Appellant's mother relevant to cll 13(2)(c), 13.3, 14(1)(b) and 14.2(1)(b) of Direction 79?

High Court. Does the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia come to an end when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future? If so, who bears the onus of proving that there is no real prospect of removal becoming practicable in the reasonably foreseeable future?

Federal Court. In determining pursuant to cl 13.1.1(1)(e) of Direction 79 "whether there is any trend of increasing seriousness", should the trend be determined by reference to the dates of the offending, as opposed to the dates of the conviction for such offending? If a particular offending is followed by a less serious offending, does that necessarily mean that the trend of offending is of decreasing seriousness? Is the determination under cl 13.1.1(1)(e) a jurisdictional fact?

Federal Court (Full Court). Is consideration of a person's health for the purposes of paragraph 9.2(1)(a) of Direction 90 limited to diagnosed conditions? In the absence of express reference to the definition of "family violence" in Direction 90, is it enough to determine that a person is someone else's intimate partner? Was it only for the admin decision-maker to consider whether someone was a member of the Appellant’s family?

Federal Court. Were the applicant’s offending and risk of re-offending matters properly able to be considered as part of the evaluation of the strength, nature and duration of his ties to Australia? Did the Tribunal double count its assessment of the nature and seriousness of the applicant’s offending and the risk of re-offending?Federal Court. Were the applicant’s offending and risk of re-offending matters properly able to be considered as part of the evaluation of the strength, nature and duration of his ties to Australia? Did the Tribunal double count its assessment of the nature and seriousness of the applicant’s offending and the risk of re-offending?

Federal Court (Full Court). Where the Tribunal finds that no marital or de facto relationship as defined in ss 5F and 5CB of the Migration Act 1958 (Cth) existed at any time, is the consequence that the question of family violence for the purpose of cl 100.221(4) of Schedule 2 to the Migration Regulations 1994 (Cth) does not arise for consideration, contrary to El Jejieh?

Federal Court. Were the matters captured by s 34(2)(a), s 34(2)(b) and s 34(c) of the Australian Citizenship Act 2007 (Cth) mandatory considerations for the purpose of the exercise of the discretion in s 34(2)?

Federal Court. Do the "obligations to accord natural justice and the obligation to act within the bounds of legal reasonableness are closely linked and overlap to some extent"? Does "the codifying effect of s 473DA(1)" mean that, "except to the extent that procedural fairness overlaps with legal unreasonableness, procedural fairness is not the “lens” through which the content of procedural obligations imposed on the Authority in the conduct of a review is to be determined"?

Federal Court: In the context of s 501CA(4), AAT found it did not need to consider Applicant's claim that he feared harm if returned to Iraq as non-refoulement obligations would be assessed first if Applicant applied for protection visa, due to Direction 75. AAT wrote: "Although this Tribunal is inclined to believe that [the applicant] would be at some risk if returned to Iraq ..., it is not in a position to make any such definitive finding in the absence of more solid probative or evidentiary material to which it does not have access". Nevertheless, AAT found that such a claim weighed in favour of the Applicant. Did AAT make the error discussed by the FCAFC in Omar by not considering risk of harm outside the scope of non-refoulement obligations? Can it be said that such error was immaterial as AAT found there would be "some risk" of harm anyway? In other words, is the materiality test a binary exercise?