Case Law Updates

Federal Court (Full Court). Does a failure to perform the Secretary’s duty under s 418(3) of the Migration Act 1958 (Cth) to give the Tribunal the documents that are relevant to the review invalidate a subsequent decision by the Tribunal?

Federal Court (Full Court). Can it be said that, for para 9.2(1)(a) of Direction 90, "evidence or findings which reflect that the appellant misuses alcohol and drugs, has a propensity for poor behaviour or committing crimes while intoxicated and has required rehabilitative intervention does not compel a finding that the appellant has a dependency on alcohol amounting to a “health issue”, let alone one that would impede his reintegration in [his home country]"?

Federal Court (Full Court). Can a subclass 485 visa applicant who nominated a visa stream in the visa application form seek to satisfy the criteria in Schedule 2 of the Migration Regulations 1994 (Cth) for the other stream?

Federal Court. Were the matters captured by s 34(2)(a), s 34(2)(b) and s 34(c) of the Australian Citizenship Act 2007 (Cth) mandatory considerations for the purpose of the exercise of the discretion in s 34(2)?

Federal Court. In reviewing a decision made under s 501CA(4), did the Tribunal deny the appellant procedural fairness by failing to put him on notice of an adverse conclusion which was not obvious on the material, namely that the “best interests of the children consideration” might be a factor against him?

Federal Court. Did the respondents owe a duty of care to limit the duration of the applicant’s detention to that required for the purpose of his removal from Australia as soon as reasonably practicable from the time of his written request to be removed made under s 198(1) of the Migration Act 1958 (Cth)?

Federal Court. Is the validity of an application to the Tribunal under s 500 of the Migration Act 1958 (Cth) a jurisdictional fact? By finding that the review application was out of time, did the Tribunal implicitly found that that application was invalid? Did the mere sending of a bundle of documents to the Tribunal constitute a valid Tribunal application?

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"?