Case Law Updates

Federal Court. Sections 195A, 351 and s 417 of the Migration Act 1958 (Cth) give the Minister powers which can only be exercised by the Minister personally in the public interest. Is the evaluative task of determining whether it is in the public interest for such powers to be exercised a task which cannot be delegated or undertaken through any form of agency in any respect? Is there a basis to grant injunctive relief preventing the removal of the appellant from Australia while the Minister considered whether to exercise those powers?

Federal Court (Full Court). Did para 9.2(1)(a) of Direction 90 require that there must be medical certification in order for a non-citizen’s “health” to be taken into account under that paragraph? Can it be said that para 9.3(1) applied "only to the impact on a victim of the perpetrator remaining in Australia, and excluding consideration by a decision-maker of the impact upon a victim of an offender being removed from Australia"?

Federal Court. Is a failure to disclose other judicial proceedings upon commencement of a proceeding in relation to a tribunal decision fatal to the latter proceeding?

Federal Court (Full Court). Was the proposition that indefinite detention would constitute a breach of Australia’s international obligations a merely arguable consequence of the Minister’s decision, instead of an inevitable or certain legal consequence? If so, does that suffice to distinguish the Full Court decisions in CWY20 and ENT19? Were such decisions impliedly overruled by the High Court in Plaintiff M1?

Federal Court (Full Court). Can it be said that, "if it is common ground between parties that a particular fact is so, then it is a denial of procedural fairness for an administrator, for example, the Tribunal, to depart from that position without giving each party an opportunity to make submissions on that subject; in other words, ambushing by a decision-maker can amount to jurisdictional error"?

Federal Court. Were the individual subjects of the applicant’s Graduate Diploma in Business capable of being considered by the Tribunal as specifically relevant to the applicant’s nominated occupation of Information and Communications Technology (ICT) Business Analyst (ANZSCO Code 261111), with the result that the Tribunal could have considered the Diploma as 'closely related' to that occupation under cl 485.222 of Schedule 2 to the Migration Regulations 1994 (Cth)?

Federal Court. Was it "uncontroversial that people in immigration detention are subject to a much greater level of surveillance and monitoring than people in the community generally"? Would the complaint that the Tribunal took into account an irrelevant consideration have force "if the fact that the applicant’s ability to avoid drug use had not been “tested” was the Tribunal’s only basis for finding that he posed an elevated risk of reoffending"?

Federal Court (Full Court). Is 'danger' as used in s 36(1C)(b) of the Migration Act 1958 (Cth): such that "the harm that will eventuate if the danger becomes a reality is non-trivial" and "of a physical or psychological kind"; one "that combines an assessment of how probable harm is with an assessment of the severity or seriousness if the probability eventuates"? Is the 'Australian community' as used in s 36(1C)(b) conceived of as the community as a whole and/or any person or persons who are part of it?

Federal Court. Should subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Migration Act 1958 (Cth) be construed as impliedly conferring power on the Minister to approve in writing ‘another place’ of immigration detention? Did s 273 of the Act and subpara (b)(i) of the definition of “immigration detention” impliedly limited the Minister’s power under subpara (b)(v) only to the approval of places which are not a formal institutional place and not a de facto detention centre? If the Commonwealth’s contracting and expenditure on the Hotels was not lawfully authorised, was the applicant’s detention thus unlawful?

Federal Circuit and Family Court. Are disbursements, including filing fees, in migration litigation generally not to be included in costs awards for migration judicial proceedings? Are the scale costs in the Circuit Court inclusive of filing fees? Can an application for costs possibly, or arguably, include the filing fee in migration proceedings brought in the Circuit Court?