Case Law Updates

Federal Court. In the context of s 501CA(4) of the Migration Act 1958 (Cth), did the Tribunal err in assessing the legal consequences of its decision in that it wrongly found that indefinite exclusion from Australia under special return criterion 5001 of Schedule 5 to the Migration Regulations 1994 (Cth) was an intended consequence of the cancellation of his visa by operation of law and thus necessarily of neutral weight?

Federal Court. Given the Tribunal's extensive references to the Applicant's drug addiction throughout its reasons, can it realistically be supposed that the Tribunal overlooked that addiction in concluding generally that he was "apparently in good health" for the purpose of cl 9.2(1)(a) of Direction 90?

Federal Court. Was the Applicant a non-alien who was not subject to the Migration Act 1958 (Cth), with the result that his detention under s 189(1) of the Act was unlawful, because: he was "accepted by the Australian body politic and community as a citizen ...; the fact that he renounced that citizenship in 1995 does not change his non-alien status"; or "he has the essential characteristics of a non-alien, based on a holistic assessment of his circumstances"?

Federal Court (Full Court). In deciding whether it was in the national interest to grant a visa, was the Minister obliged to take into account the legal consequences of his decision, "particularly when those consequences have implications not only for an applicant but also for the nation"? Is there a "necessary inconsistency between being satisfied that the appellant is not a danger to Australia’s security for the purpose of s 36(1C) and not being satisfied that it is in the national interest to grant him a SHEV for the purpose of Sch 2 cl 790.277"?

High Court. Does functus officio address the capacity, or authority, to adjudicate a matter, whereas estoppel addresses the capacity of the litigants to litigate a matter?

Federal Court. Was a finding that the Appellant had been indifferent as to whether her representative had provided false or misleading information "capable of sustaining the conclusion that the information had the requisite character of purposeful falsity", as required by the "false or misleading" test in PIC 4020(1)?

Federal Court (Full Court). Can it be said that "the material the subject of the second certificate did not have the quality of confidence required by s 376 due to an “iniquity” arising from emails sent by [the Appellant's] wife to the Minister"? Was s 376(1)(b) of the Migration Act 1958 (Cth) such that "the relevant quality of confidence attaches to the information at the point the information is given"?

Federal Court (Full Court). The power under s 501CA(4) of the Migration Act 1958 (Cth) can be exercised in the circumstances described in s 501CA(1), which provides as follows: "This section applies if the Minister makes a decision ... under subsection 501(3A)" (emphasis added). If a visa is cancelled under s 501(3A) by a delegate, does that mean that a decision cannot be made under s 501CA(4)?

Federal Court (Full Court). Did the Tribunal have the power, in reviewing a refusal to grant the Respondent a SHEV, to determine whether the Minister had made a jurisdictional error in granting him a temporary safe haven visa under s 195A? Is it an implied condition that the state of mind called for by s 195A, namely that the Minister thinks that it is in the public interest to grant the visa, be formed on the basis of a correct understanding of the law?

Federal Court. Were the applicant’s offending and risk of re-offending matters properly able to be considered as part of the evaluation of the strength, nature and duration of his ties to Australia? Did the Tribunal double count its assessment of the nature and seriousness of the applicant’s offending and the risk of re-offending?Federal Court. Were the applicant’s offending and risk of re-offending matters properly able to be considered as part of the evaluation of the strength, nature and duration of his ties to Australia? Did the Tribunal double count its assessment of the nature and seriousness of the applicant’s offending and the risk of re-offending?