Case Law Updates

Federal Court (Full Court): it is settled law that, in order for a fraudulent visa application lodged by an RMA to be invalid, the applicant must be neither complicit in, nor 'indifferent' to, the fraud (Gill and Singh). The Full Court elaborated on those previous decisions, holding that 'indifference' in public law means 'reckless indifference' at common law

Federal Court (Full Court). Is a court prevented from restraining abuses of its process in an application for habeas corpus?

Federal Court (Full Court). Did detention in a Youth Justice Centre involve an element of punishment, with the result that such a kind of detention was a form of punitive detention? Was the meaning of “sentenced to a term of imprisonment” in s 501(7) of the Migration Act 1958 (Cth) intended to depend on the different sentencing regimes in diverse jurisdictions? Did a “term of imprisonment” within the meaning of s 501(7)(c) also include non-punitive imprisonment?

Federal Court (Full Court): the AAT interpreted r 1.05A of the Migration Regulations 1994 (Cth) to provide that a non-citizen could only be "substantially reliant" on a single person in order to be "dependant" on that person. The Appellant argued to the Court that she could be "substantially reliant" both on the primary applicant and on a non-applicant.

Federal Court. In order for an error (or errors) in the form of legal unreasonableness in a decision-making process to be labelled "jurisdictional", is it necessary for the materiality of the error to be established as a separate, additional element? Does Makasa apply to s 501(1)? In exercising the power under s 501A(2) to override a decision of the Tribunal, can the Minister rely on matters that were known to him at the time of the Tribunal hearing but not put by him (or on his behalf) to the Tribunal?

Federal Court. Does the principle according to which costs ordinarily follow the event "answer the question as to whether costs should be ordered when, as in the present case, the application was not determined"? If the Applicant would have been substantially successful, had he not been granted the visa, is this a circumstance that favours costs being awarded against the Respondent? In a real sense, was the judicial review application directed at the Applicant's liberty?

Federal Court: AAT was taken to have dismissed application withdrawn under s 42A(1A) of AAT Act: s 42A(1B). AAT notified Appellant of dismissal, who then unsuccessfully applied to AAT for review of dismissal. Appellant then applied once again for review of dismissal, but AAT rejected that application as vexatious and made direction that Appellant must not make a subsequent application for review of delegate's decision without leave of AAT: s 42B. In relation to the s 42B decision & direction, was Appellant entitled to: hearing; natural justice, more generally? Does Res Judicata apply to AAT proceedings?

Federal Court. Is the grant of an injunction that interfered with the performance of the statutory duty to remove unlawful non-citizens from Australia as soon as practicable exceptional, therefore requiring there to be a strong case for the making of the order?

Federal Court. In considering r 2.43(1)(p), was AAT obliged to comply with Direction 63? Were Appellant’s promise to a delegate not to re-offend and the consequential risk of re-offending mandatory considerations under Direction 63? Did fact that Appellant never abandoned before AAT the promise made to delegate mean the promise was clearly articulated to AAT or clearly emerged from materials before it? Was representation before AAT relevant? Did representative have right to make submissions?

Federal Court (Full Court). The respondent gave evidence that, at the time he received notice of a decision to cancel his visa under s 501(3A) of the Migration Act 1958 (Cth), he had been processed and released from prison, and waiting in a cell. Does the onus of proof shift to the Minister to establish the fact that the respondent was serving a sentence of full time imprisonment when the cancellation decision was made? If the cancellation occurred on the day of the respondent's release, was s 501(3A)(b) necessarily not met?