Case Law Updates

High Court. Does the question of whether a decision is reviewable under Part 5 of the Migration Act 1958 (Cth) depend on a non-citizen's ability to satisfy the requirements in s 347(3A)?  

Federal Court (Full Court). The Full Court discussed in detail whether single judge decisions of the Federal Court (whether in the original or appellate jurisdiction) bind Full Court decisions (whether in the original or appellate jurisdiction) and vice-versa. It also discussed whether Ali, Ibrahim and BCR16 were correctly decided and the effect of Direction 75.

Federal Court (Full Court). Is "unwarrantable delay" a "basis upon which, in particular circumstances, any of the remedies sought by the Appellant under s 39B of the Judiciary Act might, in the exercise of a judicial discretion, be refused, in the same way in which the remedies for which s 75(v) of the Constitution provides might be refused"? May a relevant Minister "be taken to have read [a] departmental submission, especially in circumstances where he approved it, wrote brief notes upon it, and signed it"?

Federal Court. Was it an irrelevant consideration for the Tribunal to take into account the Appellant's future intentions when determining whether he intended genuinely to stay in Australia temporarily pursuant to cl 500.212(a)(iv) of Schedule 2 to the Migration Regulations 1994 (Cth)?

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 (Full Court): could it be said that it "may be that a complementary protection claim could be based upon prevailing circumstances in a country of a kind that would expose a particular returnee to a risk of harm, even though there is no identified reason why the applicant for a protection visa might be targeted"?

Federal Court: Although this case concerned a non-migration matter, it might be relevant to migration matters. Applicant applied to AAT for review of original decision. Applicant applied to AAT's Registrar to issue summonses. Registrar refused to do so and referred matter to an AAT member, who issued "Directions on Preliminary Issues" refusing the request to issue summonses. Did that direction constitute a decision under s 44(1) of the AAT Act, which would therefore be "appealable" to the FCA?

Were the best interests of the Appellant's child a mandatory consideration in determining under cl 820.211(2)(d)(ii) whether to "waive" criterion 3001? The Appellant and his sponsor claimed that the sponsor's pregnancy was not planned. Was it open to the AAT to find that: the conception of the child was "motivated by a desire to bolster [Appellant's] chances of securing waiver of" criterion 3001; and thus that no compelling circumstances existed? If not, was it anyway open to AAT to find that, as the couple "chose to have a child in the full understanding that the applicant was not the holder of a substantive visa and that he might have to go offshore to lodge his Partner visa application", the AAT "does not accept that the birth ... is a compelling reason"?

Federal Court: With respect, does this decision stand in contrast to the majority judgements in Hossain and/or SZMTA in two important respects?

Federal Court. If the Tribunal's decision not to call a witness put forward by the Appellant was affected by jurisdictional error in that it lacked an evident and intelligible justification, could that error also be identified as a failure to take into account a relevant consideration (that the witness' oral evidence may assist the Tribunal to determine the Appellant's claim to be a refugee)?