Case Law Updates

High Court. Is there common law presumptions in Australia that "the Crown is not bound by statute unless a contrary intention can be discerned from all the relevant circumstances" and that a statute does not impose criminal liability on the Crown?

Federal Court. Should Thornton and Lesianawai be extended to s 35(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW)? Did the fact that the applicant had only been involved in the supply of methamphetamine at the instigation of an undercover officer render his offending as irrelevant to the Tribunal's inquiry as to the protection of the Australian community under para 8.1.1(1) of Direction 99?

High Court. In determining whether removal to a country is practicable in the reasonably foreseeable future, can the steps practically available to be taken "be expected frequently to include administrative processes directed to removal which require the cooperation of the detainee and in which the detainee has the capacity to cooperate"?

Federal Court. Did the withdrawal of the appellant's visa application occur by operation of s 49 of the Migration Act 1958 (Cth), with the result that: a) no decision was made in order for the withdrawal to take effect; b) there was no failure or refusal on the part of Minister to make a decision in relation to the visa application; c) the Minister did not make a "migration decision"; d) the Federal Circuit and Family Court had no jurisdiction under s 476 of the Act to review the withdrawal?

Federal Court. In Thornton, the High Court held that, as the non-citizen's finding of guilt in Queensland was made without recording of a conviction, his offending as a minor was an irrelevant consideration under s 501CA(4) of the Migration Act 1958 (Cth). Should Thornton be extended to Victorian offences?

Federal Court. In making a decision under s 501CA(4) of the Migration Act 1958 (Cth), was it open to the Tribunal not to speculate about the likely length of the applicant’s immigration detention, even though he had been found to be a refugee? Does NZYQ operate retrospectively?

Federal Court. Was the Tribunal required to identify, in its determination of both the “serious reasons” in s 5H(2) and the “serious non-political crime” in s 5H(2)(b) of the Migration Act 1958 (Cth), the alleged “crime” and analyse its elements? Although s 5H(2) required the decision maker to "consider" whether the elements in ss 5H(2)(a), (b) or (c) are met, can it ask itself whether it "suspects" or "believes" that they are met?

Federal Court. Does the inclusion of a specific procedural fairness requirement into para 8.2(2)(b) of Direction 99 require something more or something different than usual procedural fairness under 501CA(4) of the Migration Act 1958 (Cth)? If so, what is that "something more"?

Federal Court. For migration proceedings in the Federal Circuit and Family Court, is there "bias or weighting to be accorded in favour of scale costs such that there must be a “good reason”, “exceptional circumstances” or a case of “unusual complexity” before one of the other options is selected"?

Federal Court (Full Court). Did subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Migration Act 1958 (Cth) impliedly confer power on the Minister to approve in writing “another place” of immigration detention? If so, did that power exclude the power to create a de-facto detention centre, which is already provided for in subpara (b)(i) of that definition and s 273 of the Act? Is immigration detention lawful even if the expenditure involved in detaining the appellant was not lawfully authorised?