Case Law Updates

Federal Court. Where the Minister by his or her conduct invites further submissions for the purpose of exercising the personal power in s 501BA(2) of the Migration Act 1958 (Cth), is the Minister thereafter compelled to consider that material, even though s 501BA(3) provides that the rules of natural justice do not apply to s 501BA(2)?

Federal Court. Did the Tribunal err in concluding that the Minister retained a discretion under s 65 to grant a partner visa even if the applicant did not satisfy the special return criteria?

Federal Court (Full Court). If, following the affirmed refusal by the Tribunal of a protection visa application, the Minister intervenes under s 417(1) of the Migration Act 1958 (Cth), does the protection visa application remain refused, with the result that the bar under s 48A prevents a further protection visa application being made while the non-citizen is in the migration zone?

Federal Court. The Tribunal made its decision after Direction 90 commenced but before Direction 99 commenced. Was the Tribunal obliged to have regard to the “change in policy” in Direction 99?

Federal Court (Full Court). Was the Tribunal entitled to double count its assessment of the seriousness of the applicant's offending both when attributing weight to that specific consideration and again when weighing all considerations, both primary and other, in the final assessment?

Federal Court. Did s 501CA(4) of the Migration Act 1958 (Cth) allow the Tribunal to consider the "future potential costs associated with the possible incarceration of the applicant while considering the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct"?

High Court. Is it necessary for there to be a "matter" before the Full Court of the Federal Court for it to have jurisdiction in an appeal? If so, can it be said that there was no "matter" before the Full Court "because the orders that the Commonwealth parties sought to appeal had no operative legal effect by the time the Full Court determined the appeals"?

Federal Court. Can it be said in the context of s 501CA(4) of the Migration Act 1958 (Cth) that, "in any particular case, the practical reality of a person’s situation may be such that although there are theoretical avenues by which their immigration detention might be brought to an end, no such avenue presently has any realistic possibility of materialising"?

Federal Court. Are orders made by a superior court infected by jurisdictional error valid until set aside? Are orders made by an inferior court infected by jurisdictional error valid until set aside?

Federal Court (Full Court). Is the vulnerability of a particular victim because of his or her characteristics such as physical stature relative to the characteristics of the offender a relevant vulnerability for the purposes of paras 8.1.1(1)(b)(ii) and 8.4(2)(c) of Direction 90?