Case Law Updates

Federal Court. Was it legally unreasonable for the Tribunal to refuse to wait for the outcome of merits review concerning the nomination of a position relating to a subclass 457 visa application before reviewing a decision to refuse to grant the subclass 457 visa?

Federal Court. Can it be said that "information about conditions in a specific country (usually called “country information”) may include information about an identified or reasonably identifiable individual" and therefore that country information may include "personal information" for the purposes of the Migration Act 1958 (Cth)?

High Court (single Justice). Does the common law, once determined, operate both prospectively and retrospectively? In other words, if an administrative decision-maker decides a case based on the law as then understood, but that understanding then changes, does the new understanding apply ab initio?

Federal Court. Was it permissible for the Tribunal, pursuant to cl 9.4.1(2)(a) of Direction 90, to give less weight to how long the Applicant had resided in Australia, on the basis that the offending conduct commenced when he was a minor? Could "a passage of 12 years constitute “soon after” arrival in relation to commencement of offending conduct"?

Federal Court. Art 12(4) of the ICCPR read: "No one shall be arbitrarily deprived of the right to enter his own country". Judicial review applicant argued that Australia was his "own country" by reason of having lived in Australia since the age of 4 and that, in determining whether to revoke under s 501CA(4) the mandatory visa cancellation decision made under s 501(3A), Minister was obliged to put him on notice that he might make a decision which would arbitrarily deprive him of the right to enter (and remain) in Australia.

High Court. Can it be said that "the differences in the text, context and purpose of s 36(2)(a) and s 36(2)(aa) and, thus, in the construction and application of the separate criteria in s 36(2)(a) and s 36(2)(aa) compel the conclusion that the principle in Appellant S395 in relation to s 36(2)(a) (whether as that provision was framed at the time of the decision or as now in force) does not apply to the statutory task when considering the complementary protection criterion in s 36(2)(aa)? Are the circumstances constituting "significant harm" exhaustively identified in s 36(2A)?

OMARA: "I am satisfied that the Agent knowingly entered into arrangements that facilitated the provision of unlawful migration assistance... I have taken into account that the applications submitted to the Department on behalf of these sponsors were handled through the Agent’s business and that she was the nominated migration agent. It follows that I am satisfied the Agent knew, else ought to have known, immigration assistance was provided unlawfully in relation to their respective matters".

Federal Court. Is it an error to diminish the weight to be accorded to para 14.2(1)(b) of Direction 79 by reason of either of the sub-considerations...

Federal Court. The High Court's majority held in Plaintiff M1/2021 that a decision-maker must "read, identify, understand and evaluate" representations made for the purposes of s 501CA(4) of the Migration Act 1958 (Cth), even though that provision does not render every statement in a representation a mandatory consideration. Should that be contrasted with para 8.1.2(2)(b)(i) of Direction 110, which renders 'information and evidence on the risk of the non-citizen re-offending' a mandatory consideration?

Federal Court. Do the terms of s 75(v) of the Constitution prevent the abolition of the natural justice rule under s 501BA(3) of the Migration Act 1958 (Cth)? Are there "significant doubts concerning the ability of the applicant to seek “bail” (an order sought in criminal proceedings) in the present administrative context, particularly in light of such authorities as Al-Kateb v Godwin"?