Case Law Updates

The OMARA found that: metadata obtained from the Department indicated that the agent's non-RMA manager had authored documents in support of some visa applications; the metadata was one of the indicia that the non-RMA manager had provided immigration assistance

Federal Court. Did cl 9.2 of Direction 90 assume removal from Australia? Was cl 9.4.1 capable of requiring consideration of removal or indefinite detention? Was it "illogical, irrational or otherwise legally unreasonable for the Tribunal to reduce the weight which it would otherwise have given to the other considerations in cll 9.2 and 9.4.1 because, in the applicant’s current circumstances, the Tribunal found that the only way in which he could be removed to South Sudan was at his own request"?

Federal Court. The Appellant appealed to the FCA from an FCCA decision and raised a new ground of judicial review for the first time on appeal. Should the FCA refuse leave to run the new ground on the basis that, if leave were granted, the Minister would suffer as he would have no practical right of appeal to the HCA?

Federal Court. Are orders made by a superior court infected by jurisdictional error valid until set aside? Are orders made by an inferior court infected by jurisdictional error valid until set aside?

High Court. In hearing an interlocutory appeal concerning the trial judge's refusal to exclude evidence under s 137 of the Evidence Act 2008 (Vic), was the Court of Appeal required to apply the principles in House v The King applicable to the review of discretionary decisions or the "correctness" standard? 

Federal Court. The Applicant, an unauthorised maritime arrival, made a request for Ministerial intervention under s 46A(2) of the Migration Act 1958 (Cth). Before determining that request, the Applicant was told that he would be removed from Australia. In an application for interlocutory injunction to restrain his removal, did the balance of convenience favour the respondents because removal would frustrate the duty under s 198?

Federal Court. Is the Tribunal bound to uncritically accept an expert's opinion? If not, is it nevertheless bound to do so if the expert's opinion was adduced before the Tribunal by a non-citizen and the Minister was a party who did not adduce any evidence to contradict that opinion?

High Court. Can it be said that, "while [the respondent] may have been motivated to bring the current proceedings out of loyalty to [another person] or to avoid a possible forensic disadvantage to [that person], that does not mean that the proceedings were brought for an improper purpose"?

Federal Court. In the context of assessing cl 500.212 (GTE), are merits review applicants necessarily on notice of the relevance of the matters set out in Direction 69 due to the very fact that they are so set out? Was it legally unreasonable for the AAT to treat what it found to be false statements made in a previous tourist visa application made by the Appellant as probative of an intention to stay in Australia beyond the conclusion of the student visa?

Federal Court. Does Paragraph 9.1.2(1) of Direction 110 recognise that a person may raise international non-refoulement obligations distinct from the statutory “protection obligations” assessed in the protection visa process?