Case Law Updates

Federal Court. Section 47(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW) read: "A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires." Do the terms 'end of the day' mean end of daylight hours for the purpose of the reference to 12 months' imprisonment in ss 501(7)(c)-(d) of the Migration Act 1958 (Cth)?

Federal Court. May the extent of what a habeas corpus applicant is required to demonstrate to secure his/her release have regard to the extent to which knowledge of relevant matters is in the hands of the detainer? Can an action for false imprisonment be brought by a person who has no basis at all for a view that the detention was not lawfully justified? In a claim for false imprisonment, must the applicant negative a defence which the respondent may have? In other words, is the lack of a defence an element of the tort?

Federal Court (Full Court). For a person to be a ‘parent’ within the meaning of s 12 of the Australian Citizenship Act 2007 (Cth), must he or she be the biological parent of the child? Can it be said that, "whether the relationship between [the Respondent's mother and the Respondent's claimed father] was “genuine and continuing” at the time of [the Respondent's] birth or whether [her mother] may have made misrepresentations concerning the extent of her relationship with [the claimed father] is of limited relevance to, much less determinative of, the statutory question"?

Federal Court (Full Court). Is a court prevented from restraining abuses of its process in an application for habeas corpus?

High Court. Does s 351(1) of the Migration Act 1958 (Cth) involve 2 sequential statutory decisions (the first being procedural and the second being substantive) neither of which the Minister is obliged to make? Were the 2016 Ministerial Instructions an approximation of the 'public interest' (being the test in s 351(1)), with the result that the Minister purported to entrust the dispositive evaluation of the public interest to departmental officers, thereby exceeding the statutory limit on executive power imposed by s 351(3)?

Federal Court. Does the reference to 'claimed harm' in para 9.1(6) in Direction 90 mean harm that is claimed to be the necessary 'specific type of harm' that must be demonstrated in order to give rise to an international non-refoulement obligation? Did para 9.1(6) require the Tribunal to "consider whether the applicant's case was 'an appropriate case' to assume in the applicant's favour whether the claimed harm relied upon to support the non-refoulement obligation will occur"?

Federal Court. How should the 35 days referred to in s 477(1) of the Migration Act 1958 (Cth) be counted? Was the date of the "migration decision" the date when the Tribunal issued a corrigendum to its decision?

Federal Court. Was it permissible for the delegate to consider, for the purpose of r 2.20(17)(c) of the Migration Regulations 1994 (Cth), that the Appellant had not signed a request for removal, was not in immigration detention and had a pending application for judicial review?

Federal Court (Full Court). Does it follow from the High Court's decision in Plaintiff M1 that there is "an important distinction between considering (in the sense of adverting to and understanding) the representations made by an applicant seeking the revocation of a visa cancellation under s 501CA(4) (on the one hand) and considering the same representations, in the sense of evaluating their significance in the course of making the decision (on the other hand)"?

Federal Court. The Minister submitted to the Tribunal that it should give no weight to the statements by the applicant's witnesses, as they had not been made available for cross-examination. Was the applicant denied procedural fairness in circumstances where his representative: did not object to the course proposed by the Minister or indicate to the Tribunal that he was caught by surprise by that submission; was asked by the Tribunal whether he wished to respond to any points made by the Minister’s representative?