Case Law Updates

Federal Court (Full Court). Does item 4 of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Amending Act) involve a usurpation of judicial power? Does item 4 have the effect of withdrawing or fettering the entrenched jurisdiction of the High Court under s 75(iii) and (v) of the Constitution? Do items 4(3), (4) and (5)(b)(i) of Sch 1 to the Amending Act effect an acquisition of the applicant’s right to sue for false imprisonment otherwise than on just terms, contrary to s 51(xxxi) of the Constitution?

Federal Court. Para 8.2 of Direction 90 required the Tribunal to consider family violence for the purpose of reviewing a decision under s 501CA(4) of the Migration Act. Can the Tribunal fulfil its obligation to take account of whether the applicant's conduct constituted family violence without considering whether the victims of that violence were members of his family?

Federal Court. The applicant 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 applicant 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 applicant failed the character test?

Federal Court. Does s 423A of the Migration Act 1958 (Cth) codify the circumstances in which the Tribunal may draw an unfavourable inference?

Federal Court. For the purposes of s 423A, is a “claim” to be equated with a singular factual allegation? Were the “clear particulars” the Tribunal was obliged to provide to the appellants under s 424A “clear particulars” of the "information that the Tribunal considered rightly or wrongly would be a reason or part of a reason for affirming the decision under review"?

Federal Court (Full Court). Was the obligation under s 39(1) of the AAT Act to ensure procedural fairness higher than that provided by the common law? Must the content of a “reasonable opportunity” in s 39(1) of the AAT Act be construed in light of the terms of s 500(6L) of the Migration Act 1958 (Cth)?

Federal Court. Can it be said that the Tribunal's conclusions that the applicant's crimes against other road users, strangers and members of the public going about their daily lives were crimes against vulnerable members of the community for the purposes of para 8.1.1(1)(b)(ii) of Direction No. 90 were not obvious, with the result that procedural fairness required the Tribunal to put those conclusions to the applicant?

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?