Case Law Updates

Federal Court. Did s 501CA(4) of the Migration Act 1958 (Cth) allow the Tribunal to consider the "future potential costs associated with the possible incarceration of the applicant while considering the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct"?

High Court. Can it be said that, "while [the respondent] may have been motivated to bring the current proceedings out of loyalty to [another person] or to avoid a possible forensic disadvantage to [that person], that does not mean that the proceedings were brought for an improper purpose"?

Federal Court: FCCA dismissed application under s 477(2) for extension of time within which to make judicial review application under s 476. As dismissals under s 477(2) are not appealable, Applicant applied to FCA for judicial review of FCCA's decision, arguing that FCCA denied him procedural fairness and thus made a jurisdictional error. In what circumstances can mistranslations or non-translations vitiate a decision? Further, Applicant claimed that his representative "had undertaken to bring proceedings [to the FCCA within the statutory timeframe] challenging the IAA’s decision and yet had failed to do so". If that claim were accepted, did the representative's action constitute fraud on the FCCA?

Federal Court. Will the Court only grant a stay of Tribunal proceedings when its supervisory jurisdiction is involved, and where there are shown to be “exceptional circumstances”?

Federal Court. In Makasa, the High Court decided that the discretionary power under s 501(2) of the Migration Act 1958 (Cth) could not be enlivened twice based on the same circumstances. Does Makasa provide support for the proposition that a decision-maker cannot consider, for the purpose of the exercise of the discretion under s 501(1), convictions that have been considered in the exercise of the discretion in a prior decision?

Federal Court. Is a child a party to migration judicial review proceedings only if a person is appointed their litigation representative?

Federal Court. In establishing a prima face case for the purpose of an interlocutory injunction, in circumstances where there is a single judge decision against it, does the existence of an appeal from that decision, "and the fact that the High Court ordered its removal, give reason to think that there may be an arguable controversy about the correctness of [that decision]"?

Federal Court. For the purpose of the term "violent crimes" in Direction 110, is there "no inherent or invariable mental state required on the part of a perpetrator before conduct will be regarded as violent", meaning that the term "refers to the application (or threatened application) of physical force contrary to law"?

Federal Court. Can it be said that, although s 25(1) of the Citizenship Act 2007 (Cth) provided that the Minister "may" cancel an approval of citizenship (if, for instance, the applicant was not of good character), the power under that provision was not discretionary?

Federal Court. Was the requirement under para 9.4.2(3) of Direction 90 to consider any impact on Australian business interests, meaning that the Tribunal was not confined to interests of a particular scale or importance? Did the qualifications in para 9.4.2(3) (i.e. “major project” and “important service”) apply only where there was an “employment link”?