Case Law Updates

High Court. Does the question of whether a decision is reviewable under Part 5 of the Migration Act 1958 (Cth) depend on a non-citizen's ability to satisfy the requirements in s 347(3A)?  

Federal Court. Section 36(1C)(b) of the Migration Act 1958 (Cth) referred to a protection visa applicant being "a danger to the Australian community"? Must the nature of the danger "be one to the safety and wellbeing of the Australian community at large, in general or as a whole, rather than to “one or more members”"? If the delegate's protection visa refusal was made before s 36A was added, did this provision apply to the AAT?

Federal Court. Should the following italicised words be implied into s 501(6)(d)(i) of the Migration Act 1958 (Cth): "person does not pass the character test if, during the period of the visa there is a risk that the person would engage in criminal conduct in Australia"?

Federal Court. Can it be said that "a notice [such as form 956] which does not state that the authority conferred is for the Minister to give documents to the authorised recipient, instead of the person concerned, is not a notice for the purposes of [s 494D of the Migration Act 1958 (Cth)]"?

Federal Court (Full Court). Was the Full Court's decision in CWY20 contradicted by the High Court's decision in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17?

Federal Court (Full Court). Can the Parliament "abolish natural justice to the extent that it no longer applies to an officer of the Commonwealth in the context of constitutional writs under s 75(v) of the Constitution"? Can it be said that s 501BA(3) of the Migration Act 1958 (Cth) "impermissibly confines or restricts the judicial power conferred on the High Court under s 75(v) of the Constitution and is therefore invalid"?

Federal Court (Full Court). Was the Appellant a non-alien who was not subject to the Migration Act 1958 (Cth), with the result that his detention under s 189(1) of the Act was unlawful, because: he was "accepted by the Australian body politic and community as a citizen ...; the fact that he renounced that citizenship in 1995 does not change his non-alien status"; or "he has the essential characteristics of a non-alien, based on a holistic assessment of his circumstances"?

Federal Court (Full Court). Can it be said that "a process of reasoning that interferes with or undermines a fundamental common law right [such as the privilege against self-incrimination] may for that reason be characterised as legally unreasonable"?

Federal Court. Can it be said that, "by reason of s 426B(6) of the [Migration Act 1958 (Cth)], the obligation to provide an applicant with a statement describing the effect of ss 426A(1B) to (1F) is inextricably linked with the obligation to provide an applicant with a copy of the written statement of the decision made under s 426B(2)"?

Federal Court (Full Court). In Katoa, the High Court decided that the Federal Court was not limited, in assessing the merits of a judicial review application, to a reasonably impressionistic level of such merits, when considering whether to grant a time extension within which to bring that application. Should Katoa be extended to the consideration of whether to grant leave for a new ground of judicial review to be agitated for the first time on appeal?