Case Law Updates

Federal Court (Full Court). Do ss 197C and 198 "preclude detention for a period of time so that the executive can genuinely consider alternative possibilities for a person to remain in Australia"? Can a delegate or the Minister rationally and reasonably "decide to grant a visa to a person who a) has had a different visa cancelled and b) has applied for the cancellation to be revoked but has been unsuccessful"? Is there an inconsistency between the terms of para 14.1(6) and s 197C? Is the prospect of indefinite detention a mandatory consideration?

Federal Court. Is there "authority to the effect that specialist decision makers or tribunals are entitled to rely on their expertise and accumulated knowledge garnered through repetitive decision making"? Can it be said that a Tribunal, "unlike a court, is expected to build up “expertise” in matters such as country information" and that taking that expertise into account amounts to a want of procedural fairness by reason of pre-judgment? Does Minister bear onus of proving he has specialist accumulated knowledge?

Federal Court. Does the reasoning of the Full Court in CGX20 require "the conclusion that a victim of offending who advances a claim that the impact on them should the cancellation of an offender’s visa be revoked would be positive is disentitled from having that contention and their interest as a victim taken into account in the application of cl 14.4 of Direction No 79"?

Federal Circuit Court. Can the potential for a denial of procedural fairness arise in connection with a parent bringing an application on behalf of a child and the child not attending the Tribunal hearing?

Federal Court: In a landmark decision which we recently summarised, the Federal Court held that s 501 of the Migration Act 1958 (Cth) did not apply to the refusal of protection visas. But can protection visas be cancelled under s 501? Is a subclass 851 (resolution of status - RoS) visa a protection visa?

Federal Court. Are the formative years confined to the period of a person's life when they were a child?

Federal Court. Can it be said that, "since the appellant’s migration agent was told in no uncertain terms during the [Tribunal] review hearing that she was not entitled to speak, there can be no objection to upholding [a ground of review of apprehension of bias] on the basis of waiver"?

Q1 to the OMARA: assuming that it was not the Agent who forged the sponsor's signature and that he was not aware of the forgery, did he nevertheless facilitate the forgery by lack of diligence? Q2: assuming that the Agent's copying of the letterhead from the sponsor's website into nomination documents without the sponsor's knowledge did not involve dishonesty, was that nevertheless a misleading act? Q3: did the metadata on the Agent's file notes indicate to OMARA that those notes were not contemporaneous?

Federal Court. Does legislation "operate extraterritorially merely because it might have some relationship to events which occur overseas"? Does s 6 of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 (Cth) operate extraterritorially? Is there a "common law right on the part of Australian citizens to re-enter Australia"? If so, was that right abrogated by legislation?

Federal Court (FCA). If the FCA does not have jurisdiction to determine a judicial review application of a migration decision filed with it but the Federal Circuit and Family Court (FCFC) does, does the FCA nevertheless have power to transfer that application to the FCFC?