Jones v Dunkel applicable to time extension under s 477A(2)?
Federal Court. Should the Court draw a Jones v Dunkel inference that the Applicant would not have been able to provide any further explanation as to the required extension of time within which to apply for judicial review that would assist him, despite the Applicant’s self-representation at the time he applied for an extension of time?
AAT acting under dictation by accepting previous AAT’s reasons?
Federal Court. Could the Tribunal act under dictation by the decision of a previous Tribunal or give automatic effect to it? Is it open to a subsequent Tribunal to agree with a proposition of law from a previous Tribunal, but only if the proposition itself was correct?
Section 36(1C)(b): “danger to the Australian community”
Federal Court (Full Court). Do the words “a danger” in s 36(1C) of the Migration Act 1958 (Cth) refer to more than trivial harm? Can the expression “the Australian community” used in s 36(1C)(b) refer to a danger to an individual within that community? Is the word 'danger' in s 36(1C)(b) a function of probability and consequence?
Child’s best interests to be considered in the case of lengthy detention?
Federal Court. In the context of a decision under s 501CA(4) of the Migration Act 1958 (Cth), was there an obligation on the Tribunal arising from Direction 90 to "consider the likely effect on minor children in Australia if the applicant were to remain in immigration detention for a lengthy period of time"?
Is prohibition of homemade food in detention centre unlawful?
Federal Court (Full Court). Does s 273(1) of the Migration Act 1958 (Cth) authorise the Commonwealth to refuse entry if a visitor insists on...
NBMZ limited to particular types of legal consequences?
Federal Court. Can it be said that indefinite detention may need to be considered as a legal consequence of a non-revocation decision under s 501CA(4) of the Migration Act 1958 (Cth) even where Australia’s non-refoulement obligations are not enlivened? Is the finding in NBMZ that decision-makers should consider the legal consequences of a decision limited to the consequence of indefinite detention arising from non-refoulement obligations?
Sections 501K(2) & 91X(2): discretion to publish protection visa applicant’s name?
Federal Court. Do the AAT and the Court have a discretion under ss 501K(2) and 91X(2) respectively of the Migration Act 1958 (Cth) to publish the name of a protection visa applicant?
Tension between MZAPC and Nathanson?
Federal Court (Full Court). In CWY20 and ENT19, the FCAFC held that it was legally unreasonable for the Minister not to consider the reputational consequences for Australia of breaching its non-refoulement obligations when assessing s 501A(2) of the Migration Act 1958 (Cth) and cl 790.227 of Schedule 2 to the Migration Regulations 1994 (Cth), respectively. Are CWY20 and ENT19 legally distinguishable for decisions made under s 501(3)? Is there a tension in the High Court's decisions on materiality in MZAPC and Nathanson?
Unreasonable delay: objective assessment taking into account lack of resources?
Federal Court. Is the question of whether there has been unreasonable delay for the purpose of s 7(1) of the ADJR Act a matter for objective determination, the question being whether a reasonable person acting in good faith could consider the delay as appropriate or justified in the circumstances, or whether it was capricious and irrational? Can delay be justified on the basis of lack of resources?
Does assessment of materiality assume open mind
Federal Court. Could the applicant’s representations in relation to rehabilitation "be properly engaged with if he relied on evidence of having completed six separate courses (plus counselling) and the Tribunal only took account of the evidence relating to three of those courses"? In assessing whether an error is material, should it be assumed that the administrative decision-maker approached the review with an open mind?