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?
Denial of PF in that s 501(3A) decision could have been made under s...
Federal Court (Full Court). Was the Appellant denied procedural fairness in that "the Minister or the Minister’s delegate decided to exercise the cancellation power in s 501(3A) rather than 501(2) [of the Migration Act 1958 (Cth)] when the latter requires the person affected to be given an opportunity to be heard before the power is exercised whereas the former does not"?
Section 360: obligation to invite on a ‘once and for all’ basis?
Federal Court. Can it be said that the obligation under s 360 of the Migration Act 1958 (Cth) to invite an applicant to a hearing does not operate on a “once and for all” basis, in that, if a new issue arises after a Tribunal hearing, a further hearing must be convened? Are issues which emerge during a hearing also subject to the obligation imposed by s 360?