Case Law Updates

Federal Court. Were the applicant’s offending and risk of re-offending matters properly able to be considered as part of the evaluation of the strength, nature and duration of his ties to Australia? Did the Tribunal double count its assessment of the nature and seriousness of the applicant’s offending and the risk of re-offending?Federal Court. Were the applicant’s offending and risk of re-offending matters properly able to be considered as part of the evaluation of the strength, nature and duration of his ties to Australia? Did the Tribunal double count its assessment of the nature and seriousness of the applicant’s offending and the risk of re-offending?

Federal Court (Full Court). Do the High Court, the Federal Court and/or the Federal Circuit Court have jurisdiction to review decisions under s 501(3A) of the Migration Act 1958 (Cth)? Does XJLR support a conclusion that the FCA has jurisdiction to review the validity of a delegate’s decision under s 501(3A) in the context of an application for judicial review of a decision under s 501CA(4)?

Federal Court (Full Court). Can it be said that, in an appeal by way of re-hearing, "in deciding the proper inferences to be drawn from facts undisputed or otherwise found, the appeal court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it"? Is error "limited to showing why or how the trial judge erred in the process or approach that was taken"?

Federal Court (Full Court). Is s 501(6)(d)(i) limited to the period of visa in question? Do the principles in Drake (No 2) about policies apply to Ministerial directions? Did the effect of para 8.1.1(1)(a) of Direction 90 (that the Australian Government and the Australian community consider sexual crimes to be very serious) relieve the Tribunal of the obligation conferred upon it by paragraph 8.1(2)(a) to consider the nature and seriousness of the non-citizen's conduct to date?

Federal Court (Full Court). Would exclusion based on s 5H(2)(b) result in exclusion based on 36(2C)(a)(ii) of the Migration Act 1958 (Cth) and vice-versa? If any part of the decision on the application for a protection visa relied upon either of those provisions, must review be sought in the General Division in order to be valid? Is the conferral of jurisdiction to review a decision 'relying on' either of those provisions a conferral of jurisdiction to review every aspect of that decision?

Federal Court (Full Court). Does the phrase 'being removed from Australia' in s 36(2)(aa) of the Migration Act 1958 (Cth) extend to voluntary or involuntary removal under s 198 or potentially under other provisions? If there is no prospect of an applicant being removed to their country voluntarily or involuntarily, is the decision-maker nevertheless obliged to consider s 36(2)(a) or (aa) as if removal could occur?

Federal Court. Is there a distinction between embarking on the evaluative task in circumstances where a discretion is being exercised such as in s 501(1) and one in which there is no discretion such as in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). If the Tribunal was required to make a decision under the former but did so by reference to the latter provision and that involved an error, was the error material?

Federal Court (Full Court). Was the Tribunal's direction, requiring the Applicant to attend and participate in a consultation with a psychiatrist, an impermissible interference with the Applicant's fundamental rights to liberty or privacy? Did the Tribunal have the power to stay the proceedings for non-compliance with its direction?

Federal Court. Did the balance of convenience strongly favour the grant of an interlocutory injunction in that, although an injunction would cause the respondents inconvenience "in the form of having to retain the applicant in detention at public expense and the need to alter arrangements that have no doubt involved at least some administrative effort", the applicant's ability to remain in Australia and seek protection was at stake?

Federal Court (Full Court). In reviewing a non-migration decision of the respondent, the Tribunal copied 64 of the 67 paragraphs of the respondent's submissions without attribution or saying that it agreed with what the respondent had submitted. Did the Tribunal fail to properly exercise its jurisdiction to conduct a "review" of the kind it was required to conduct?