Case Law Updates

Federal Court. Does the Tribunal have jurisdiction to review a delegate's decision made under s 501CA(4) of the Migration Act 1958 (Cth), even if the delegate’s decision was invalid or beyond power?

Federal Court. Does the balance of convenience favour the granting of an interlocutory injunction in circumstances where "it is arguable as to whether or not jurisdiction exists, and in turn whether or not there has been a departure from ministerially prescribed duties"? What is the prima facie position in relation to the costs of an interlocutory application for an injunction?

Federal Court (Full Court). Can it be said that, in the content of determining whether there is another reason to revoke under s 501CA(4) the mandatory cancellation of a visa under s 501(3A), "the greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms"? Further, was Omar (first instance) wrongly decided?

Federal Court: In SZMTA, the High Court had held that materiality "is a matter of fact on which the appellant bears the onus of proof". However, can it be said that "materiality has to be formally placed in issue before that onus arises"?

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. Are the words "before the Minister" in s 473DC(1)(a) of the Migration Act 1958 (Cth) confined to information that was before the Minister in an applicant's application? Or is information "before the Minister" so long as a delegate has "actual awareness" of the information, whether or not it formed part of the application?

Federal Court. Can the materiality test be expressed by asking whether, had an error not been made, there would be be more than a 'derisory' chance that a different outcome could have been reached?

Federal Court (Full Court). In determining whether a "claim" estoppel arises, can different grounds of jurisdictional error be seen as separate causes of action or claims arising out of the one decision? In determining whether Anshun estoppel arises, is the principal inquiry "whether the ground of review should have been brought forward in the first proceeding, in the sense that it was unreasonable for the appellant not to have done so"?

Federal Court (FCA). On 16 Jun 2020, we summarised a court decision where the Minister had said it would not comply with FCA orders as such orders were made "in error", as the Minister was of the view that FCA had wrongly decided BAL19 and was appealing that decision. In that 16 Jun decision, FCA said "there is no self-evident reason why even a Minister of the Crown should not comply with orders made by this Court and, if found guilty of contempt, liable to the same penalties as any other litigant". On 23 Jun 2020, KDSP overturned BAL19. Could FCA express any "confidence in this particular Minister making any decision “forthwith” ... or within a reasonably short period of time"?

Federal Court (Full Court). Is the threshold of the evidentiary burden of proof borne by applicants for habeas corpus higher than that borne by applicants for false imprisonment, in that the former requires the applicant to demonstrate that there is a “case fit to be considered”, whereas the latter only requires demonstration of the fact of imprisonment? Must applicants in both causes of action satisfy the evidentiary burden by reference to the same point in (or period of) time?