Case Law Updates

Federal Court (Full Court). Did the terms of cl 8.3(4)(a)(i) suggest that decision-makers were at liberty to attribute such weight as they see fit to that factor, providing the weight they attribute is not below the threshold of “considerable weight”? In other words, did cl 8.3(4)(a)(i) contemplate that decision-makers should give the fact of residence in Australia during a non-citizen’s formative years a degree of weight somewhere in the range at or above the minimum that can be described as “considerable”?

Federal Court (Full Court). Does a failure to perform the Secretary’s duty under s 418(3) of the Migration Act 1958 (Cth) to give the Tribunal the documents that are relevant to the review invalidate a subsequent decision by the Tribunal?

Federal Court. Are there situations where a lack of resources may explain the period taken to make a decision under s 501BA(2) of the Migration Act 1958 (Cth), but where the decision still has not been made within a reasonable time?

Federal Court (Full Court). Can a formal submission only be made that a decision of another Full Court is plainly wrong and should not be followed? Does it follow from the fact that a delegate had no power to cancel a visa under s 501(3A) of the Migration Act 1958 (Cth) that the discretion to revoke the original decision under s 501CA(4) was never enlivened? Has the Appellant's visa, which was invalidly cancelled as per the reasoning in Pearson, remained in full force and effect, whatever may be the effect of the Bill if ultimately enacted into law with retrospective effect?

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

Federal Court. Is the assessment of whether a ground of judicial review has sufficient merit to justify the grant of leave for it to be agitated for the first time on appeal to be conducted on a "reasonably impressionistic" basis?

Federal Court (Full Court). In the context of s 501CA(4) of the Migration Act 1958 (Cth), the Tribunal said: "the Tribunal does not consider that drugs are as readily available in detention as they are in the community". Was that a finding for which specific evidence or other material was required? Or could it be made based on the Tribunal’s personal or specialised knowledge?

Federal Court (Full Court). In the decision in Stewart  plainly wrong? If an invitation issued under s 501CA contained an error in the specification of the deadline for the making of representations, can it nevertheless be said that whether the invitation is invalid will depend on the extent and consequences of the error? If an invitation issued under s 501CA is invalid, does it follow that the anterior mandatory cancellation decision itself under s 501(3A) is also invalid?

Federal Court. Does a judicial review applicant need to provide extended written or oral submissions on a topic for it to be sufficiently clear that a serious representation is being made? Is it open to the Tribunal to ignore a claim made pursuant to s 501CA(4), on the basis of the lack of supporting evidence provided to support that claim? Could the risk of infection from covid-19, when weighed with other factors, provide “another reason” for revoking the visa cancellation within s 501CA(4), depending on the circumstances of the case?

Federal Court. Can it be said that, "by requiring that regard be had to the consequences flowing from the non-operation of the Act, the Applicant’s argument was flawed on the basis that it departed from existing authority, which requires that regard be had to the legal consequences flowing from the operation of the Act (cf its non-operation)"?