Case Law Updates

Federal Court. Did the respondents owe a duty of care to limit the duration of the applicant’s detention to that required for the purpose of his removal from Australia as soon as reasonably practicable from the time of his written request to be removed made under s 198(1) of the Migration Act 1958 (Cth)?

Federal Court (Full Court). Can it be said that the "Court's jurisdiction to preserve the subject matter and the integrity of its own processes so that it may effectively exercise its jurisdiction to adjudicate a controversy and, by its judgment, grant orders that have efficacy is absolutely curtailed by a legislated command [here, s 198 of the Act] the validity of which is not challenged and which it is accepted must be performed in the circumstances then applying"?

Federal Court (Full Court). Can the Parliament "abolish natural justice to the extent that it no longer applies to an officer of the Commonwealth in the context of constitutional writs under s 75(v) of the Constitution"? Can it be said that s 501BA(3) of the Migration Act 1958 (Cth) "impermissibly confines or restricts the judicial power conferred on the High Court under s 75(v) of the Constitution and is therefore invalid"?

Federal Court. Does the reasoning of the Full Court in CGX20 require "the conclusion that a victim of offending who advances a claim that the impact on them should the cancellation of an offender’s visa be revoked would be positive is disentitled from having that contention and their interest as a victim taken into account in the application of cl 14.4 of Direction No 79"?

Federal Circuit and Family Court. The Minister sought to set-off a costs order made in the applicant's favour out of a costs order made in the Minister's favour in previous court proceedings. Can it be said that "there is a public interest in people challenging governmental decisions being adequately legally represented, and allowing a set-off in circumstances such as the present may discourage appropriate lawyers from acting"?

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. Delegates refused 2 requests made under s 7 of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth). Section 7 provided that an exemption to the travel ban may be granted to an AU citizen or PR in exceptional circumstances, which are demonstrated by providing a compelling reason for needing to leave Australia. Does s 7(2) exhaust the concept of exceptional circumstances? Does the delegate's use of the language of “critical” reason rather than “compelling” reason indicate error? Do the situations which indicate a need for compassion to be exercised fall within the concept of “exceptional circumstances"? Does s 7 call for a balancing exercise of the reason for travel against the risk it might pose to the AU community? Were the circumstances described in Department of Home Affairs' website a policy? Must content of procedural fairness obligations conform to the circumstances of an emergency situation? Was denial of procedural fairness cured by fact that first refusal put Applicants on notice of factors considered by delegate?

Federal Court. Does the term 'immediate family' under cl 14.2 of Direction 79 include parents? If a decision-maker finds one of the factors in Direction 79 in favour of a non-citizen, but the weighing exercise called for by s 501CA(4) nevertheless results in a finding that there is not 'another reason' to revoke a mandatory visa cancellation, can an error in assessing that factor be material in that, had it not been made, additional weight could have been placed on that factor, which could have tipped the scales in the non-citizen's favour?

Federal Court (Full Court). Is the jurisdiction of the Federal Circuit Court (FCC) conferred by s 476 of the Migration Act 1958 (Cth) limited to remedies by way of judicial review? Was the power of the FCC circumscribed in the context of the judicial review of migration decisions "because of the omission of declaratory relief from the specific public law remedies mentioned in s 75(v) of the Constitution"? If the relief sought is "hopeless, inutile and hypothetical", does it mean that the court in which it is sought lacks jurisdiction to grant the relief?

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.