Case Law Updates

Federal Court. If a claim is not clearly articulated but arises tolerably clearly or sufficiently from the materials, is the Tribunal required to consider it?

Federal Court. Was the adverse conclusion that the Applicant had committed serious crimes against other road users who were to be viewed as vulnerable members of the community for the purposes of para 8.1.1(1)(b)(ii) of Direction 90 one not obviously open on the known material, with the result that the Tribunal not putting the Applicant on notice of it amounted to a denial of procedural fairness?

Federal Court. In assessing, for the purpose of a time extension application within which to bring judicial review proceedings, whether a proposed ground of review has any merit, is the issue to be determined at a relatively impressionistic level?

Federal Court. Is the assessment of whether a ground of judicial review has sufficient merit to justify the grant of leave for it to be agitated for the first time on appeal to be conducted on a "reasonably impressionistic" basis?

Federal Court (Full Court). Does the Tribunal’s place in an administrative decision-making continuum necessarily mean that "the issues which emerge for its consideration will be shaped not just by the criteria specified in or with respect to the statutory power it is exercising afresh but also by the way in which those issues have been developed at anterior stages of the continuum"?

High Court. Was the Respondent's finding of guilt as a child made without recording of a conviction, with the result that his offending as a minor was an irrelevant consideration and that the Minister's consideration of it was erroneous, even if the Respondent referred to his offending as a child in his submissions to the Minister?

Federal Court. In circumstances where the applicant gave evidence that, at the time he received notice of a decision to cancel his visa under s 501(3A) of the Migration Act 1958 (Cth), he had been processed and released from prison, and waiting in a cell, does the onus of proof shift to the Minister to establish the fact that the applicant was serving a sentence of full time imprisonment when the cancellation decision was made? If the cancellation occurred on the day of the applicant's release, was s 501(3A)(b) necessarily not met?

High Court. Was the political question posed by cl 790.227 of Schedule 2 to the Migration Regulations 1994 (Cth) (whether the grant of a protection visa was in the national interest) answered by the decision-maker in a manner inconsistent with PIC 4001 and s 501 of the Migration Act 1958 (Cth), as the Minister found PIC 4001 to be satisfied and disavowed reliance on s 501, thus rendering the visa refusal invalid?

Federal Court (Full Court). Is r 2.55(3) of the Migration Regulations 1994 (Cth) inconsistent with s 494A(1) of the Migration Act 1958 (Cth) and therefore invalid? For the purpose of r 2.55(3)(c), could a prison’s post office box address also be the post office box address of one of its inmates, in the absence of evidence that the involuntary nature of detention impacted on the ability of inmates to receive mail sent to the address of the prison?

Federal Court. Should s 347(1)(c) of the Migration Act 1958 (Cth) "be construed in such a way that where a fee reduction request is pending, there is no prescribed fee which must accompany the review application, which, in turn, must be made within the prescribed period"?