Case Law Updates

Federal Court: the effect of s 497(2) of the Migration Act 1958 was that the person who sent a visa cancellation notification under s 501CA(3) needed not be delegated power under s 496(1) to cancel or notify of cancellation

Federal Court. Are the words "before the Minister" in s 473DC(1)(a) of the Migration Act 1958 (Cth) confined to information that was before the Minister in an applicant's application? Or is information "before the Minister" so long as a delegate has "actual awareness" of the information, whether or not it formed part of the application?

High Court (Full Court): a non-citizen held in immigration detention invited the Court to draw the inference that there was no real prospect or possibility that he would be removed from Australia. Based on that inference, he also invited the Court to adopt the view of the minority in Al-Kateb, to the effect that his detention was unlawful.

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. "In determining whether there is a real prospect of a detainee's removal from Australia becoming practicable in the reasonably foreseeable future, should there be regard to voluntary actions that may be undertaken by the detained person to assist in their removal irrespective of whether the detainee is refusing to undertake those actions in respect of removal to a particular place because of a genuine subjective fear of harm if removed to that place"?

Federal Court: Application must be accompanied by evidence that skills assessment has been applied for: cl 485.223. Applicant must provide positive skills assessment by TOD: cl 485.224. On visa application form, Appellant specified the details (date, etc) of a failed assessment application. Did the mere specification of those details constitute evidence? Could it be said that: the failed assessment satisfied cl 485.223, as all that clause requires is that the visa application be accompanied by evidence that an assessment has been applied for; cl 485.224 could be satisfied by a subsequent assessment, so long as positive?

Federal Court. If a judicial review applicant cannot afford to order the transcript of a Tribunal hearing, can they nevertheless file an affidavit to describe the evidence given at that hearing? Can the absence from otherwise detailed reasons of any reference to a submission or argument made to an administrative decision-maker indicate that it is unlikely that such decision-maker considered such submission or argument? In determining the materiality of an error, can a court assume that the administrative decision-maker approached the decision with a closed mind?

Federal Court. Is an order requiring the disclosure of any record of the Minister’s locations not to be made lightly? Can it be said that, "where the Minister decides to personally exercise the power, with that decision must come the potential for the Minister’s obligations to be greater in terms of responding to procedural steps taken in pursuit of the individual’s right to seek judicial review"?

Federal Court. Is the Tribunal required under Direction 99 to "consider whether the decision is in the best interests of a particular child if the facts known to the Tribunal are such as to raise a realistic question as to whether the decision will affect that child"?

Federal Court (Full Court). Is the question whether the applicant has a reasonable explanation for refusing or failing to comply with a request made under s 91W of the Migration Act 1958 (Cth) a matter for the Minister to determine? Is s 91W(3) otiose? Does the phrase “reasonable explanation” in s 91W(2) connote not only that the explanation is rational, but also that the explanation is credible?