Case Law Updates

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?

Federal Court. Can it be said that, as the visa was cancelled on the basis that the applicant failed the character test arising from the application of the objective standard that he has “a substantial criminal record” in s 501(6)(a), "the subjective standard referred to in paragraph 8.1.1(1)(b)(iii) does not and cannot apply"? Is what was said in an earlier judgment involving the same applicant and Minister "material" before the Tribunal on which it could base its findings?

Federal Court. Does the AAT Act "require the representative to be independent of the applicant or to provide objective advice or guidance to the applicant"? Can it be said that "to conduct a review that is fair, just and economical does not require the necessary preclusion of a person who is also a witness from acting as a representative provided that by a representative so acting, the applicant is not deprived of a fair opportunity to present his or her case"?

Federal Court. Does the term "identity" in s 116(1AA) of the Migration Act 1958 (Cth) have a stable meaning, instead of "ambulatory so that it means something different depending on the type of visa in question, or the visa holder’s personal history"? The appellant's half-brother's visa would be automatically cancelled under s 140(1) if the appellant's visa was cancelled. Was there a denial of procedural fairness to the appellant, as he could have submitted a statement from his half-brother or asked the Tribunal to call him?

High Court. Does the information to be provided in compliance with s 29(1)(c) of the AAT Act need to be information of the slightest assistance to the Tribunal or any other party to the proceeding? Is non-compliance with s 29(1)(c) intended to result in the invalidity of a Tribunal application?

Federal Court. Can it be said that "the language of s 91WA(1)(a) [of the Migration Act 1958 (Cth)] refers to the provision of a bogus document in the present tense (“provides”) and, as a result, the provision, which commenced on 18 April 2015, did not apply at the time the appellant provided the bogus documents on 3 February 2015"?