Case Law Updates

Federal Court. In Garland, the Full Court said in relation to para 8.1.1(1)(b)(ii) of Direction 99 that, "where the Direction uses the phrase “vulnerable members of the community” it means members of vulnerable groups in the community; it does not encompass an individual who has physical characteristics or particular circumstances that make them vulnerable vis-à-vis a particular perpetrator". Would the same reasoning apply if the Tribunal said that an applicant's "sheer size would have been most intimidating to the victim"?

High Court. Can it be said that "each aspect of non-compliance with s 499(2A) [of the Migration Act 1958 (Cth)] was a particular of the one error – a breach by a statutory decision-maker of a condition governing the making of a decision, namely statutory non‑compliance with s 499(2A) of the Migration Act in failing to comply with Direction 90"?

High Court. In relation to s 501CA(4) of the Migration Act 1958 (Cth), can it be said that there is "no barrier to the Minister reading and understanding the representations made by an applicant by other methods including the method of relying only upon a departmental summary of them, so long as that summary is accurate and contains a full account of the essential content"?

Federal Court. Is Direction 99 inconsistent with s 501CA(4) of the Migration Act 1958 (Cth) "because it [serves to prohibit consideration of] what would otherwise be a matter that a decision maker should be able to have regard to when exercising its power and discretion [namely, that the Australian community might, in fact, expect that a former visa holder in the position of the applicant should have the cancellation of his or her visa revoked]"?

Federal Court. Can it be said that, "by requiring that regard be had to the consequences flowing from the non-operation of the Act, the Applicant’s argument was flawed on the basis that it departed from existing authority, which requires that regard be had to the legal consequences flowing from the operation of the Act (cf its non-operation)"?

Federal Court. Can it be said that paragraph 9.2(1) of Direction 99 "does not require the decision-maker to consider risk of harm as an impediment if removed, but rather only requires the decision-maker to have regard to an impediment that arises from the limited considerations set out in subparagraphs (a), (b) and (c)"?

Federal Court. In assessing s 501CA(4), if the Tribunal erroneously finds that detention is indefinite, is the error nevertheless immaterial to the outcome, in that "being released from immigration detention is less of an imposition on a person than being held in immigration detention, even in circumstances of statelessness and the considerable insecurity that that necessarily brings"?

Federal Court (Full Court). Is the question whether the applicant has a reasonable explanation for refusing or failing to comply with a request made under s 91W of the Migration Act 1958 (Cth) a matter for the Minister to determine? Is s 91W(3) otiose? Does the phrase “reasonable explanation” in s 91W(2) connote not only that the explanation is rational, but also that the explanation is credible?

Federal Court (Full Court). Can it be said that the "Court's jurisdiction to preserve the subject matter and the integrity of its own processes so that it may effectively exercise its jurisdiction to adjudicate a controversy and, by its judgment, grant orders that have efficacy is absolutely curtailed by a legislated command [here, s 198 of the Act] the validity of which is not challenged and which it is accepted must be performed in the circumstances then applying"?

Federal Court (Full Court). The respondent was notified of the intention to consider cancelling his visa under s 501(2), based on the "2008 conviction". The Minister did not cancel the visa, after which the respondent was convicted of further offences. The Minister then cancelled the visa under s 501(2), based on the 2008 conviction, but not the further convictions. Due to Makasa, the reliance on the same conviction was erroneous. Was the error nevertheless immaterial, as the further convictions (if they had been relied upon) would have formed an independent basis upon which the respondent failed the character test?