Case Law Updates

Federal Court. Did the Tribunal err in concluding that the Minister retained a discretion under s 65 to grant a partner visa even if the applicant did not satisfy the special return criteria?

Federal Court (Full Court). Does the subject matter of s 501 of the Migration Act 1958 (Cth) deals completely, and thus exclusively, with the subject matter of PIC 4003(b) of Schedule 4 to the Migration Regulations 1994 (Cth), with the result that PIC 4003(b) detracts from or impairs the operation of s 501?

Federal Circuit Court. Clause 485.212(a)(ii) required the visa application to be accompanied by evidence that the applicant "has achieved, within the period specified by the Minister in the instrument, the score specified ... in the instrument". Clause 4 of IMMI 15/062 specified for cl 485.212(a)(ii) that the test "must have been undertaken within the three years before the day on which the application was made". Did a test undertaken before the 3-year timeframe but whose result was achieved within that timeframe satisfy cl 485.212(a)(ii)?

High Court. If an officer detained an unlawful non-citizen "in the purported performance of a statutory duty to detain in conformity with the law as declared in a prior decision of this Court which has been held in a subsequent decision of this Court to have been erroneous", is that prior decision a defence to liability for the tort of false imprisonment?

Federal Court (FCA). Can it be said that, "in the ordinary course all issues of fact and law should be determined at the one time and that the [FCA] should generally exercise the power in r 30.01 of the Rules cautiously and sparingly"? 

OMARA: "It is an offence under sections 245AR and 245AS of the [Migration Act 1958 (Cth)] to ask for, receive, offer to provide, or provide a benefit in return for the occurrence of a sponsorship related event". This decision reviews the OMARA's views on the role of registered migration agents in the compliance with those provisions.

Federal Court (Full Court). Can it be said that, "for the purposes of the discretion under s 10(2)(b)(ii) [of the ADJR Act], the availability of a full merits review on a de novo basis can constitute “adequate provision” for review and entitle the Court to refuse relief in its discretion"? If so, is the position "perhaps even stronger here where the appellant potentially had available to him two tiers of review in the AAT"?

Federal Court. Was the FCA decision in AJL20 plainly wrong? Was it reasonable for the Department to enable the Applicant's Tribunal review application to be determined before he was in fact removed to Vietnam? Does the phrase “as soon as reasonably practicable” in s 198 of the Migration Act 1958 (Cth) "require the Commonwealth to take any and all steps reasonably practicable for it to take towards the applicant’s removal"?

Federal Court (Full Court). Was the Full Court's decision in CWY20 wrong in that "no finding should be made about the implications of Australia’s breach of a treaty obligation in the absence of evidence"? Was CWY20 in any event impliedly overruled by the High Court's decision in Plaintiff M1, in that "the Executive cannot, by compelling Australia’s entry into a treaty, alter the content of Australian domestic law so as to grant rights or impose obligations, such that the law enacted by Parliament is added to, undermined or varied, whether directly or indirectly"?

Federal Court. Does the reference to 'claimed harm' in para 9.1(6) in Direction 90 mean harm that is claimed to be the necessary 'specific type of harm' that must be demonstrated in order to give rise to an international non-refoulement obligation? Did para 9.1(6) require the Tribunal to "consider whether the applicant's case was 'an appropriate case' to assume in the applicant's favour whether the claimed harm relied upon to support the non-refoulement obligation will occur"?