Case Law Updates

Federal Court (Full Court). In Katoa, the High Court held that, in determining whether to extend time under s 477A(2) of the Migration Act 1958 (Cth), the Federal Court was not limited to a reasonably impressionist level of assessment of the merits of the judicial review application. Does Katoa apply to s 477?

Federal Court. Is it reasonably arguable that the question of whether it is ‘reasonably practicable’ to remove a person from Australia is an objective ‘jurisdictional fact’, that is a fact which a court can and should determine for itself?

Federal Court. Was the Tribunal obliged under para 9.1(6) of Direction 90, in reviewing a decision made under s 501CA(4) of the Migration Act 1958 (Cth), to consider whether it was appropriate to assume that the ‘claimed harm’ would occur?

Federal Court. "In determining whether there is a real prospect of a detainee's removal from Australia becoming practicable in the reasonably foreseeable future, should there be regard to voluntary actions that may be undertaken by the detained person to assist in their removal irrespective of whether the detainee is refusing to undertake those actions in respect of removal to a particular place because of a genuine subjective fear of harm if removed to that place"?

Federal Court (Full Court). Does the word "practicable" as used under s 501CA(3) of the Migration Act 1958 (Cth) ("as soon as practicable") mean feasible? If so, can it be said that "the question of what is feasible extends beyond the mere act of delivery of the notice and related material prescribed by s 501CA(3) to an assessment by the Minister of the recipient’s ability to respond to a notice"?

Federal Court. Is it "appropriate to conclude from the text of s 501G(1), considered in context, that the purpose of the requirement expressed in s 501G(1) for a notice to be given is to be protective of the interests of the person affected by the relevant decision beyond requiring notification"? Do s 500(6A)-(6L) require the Minister to explain the consequences of those provisions?

Federal Court (Full Court). Does the Minister have a residual discretion to determine whether or not to revoke a decision under s 501CA(4) of the Migration Act 1958 (Cth) if satisfied of either s 501CA(4)(a) or (b) are satisfied? Does the 'another reason' aspect of s 501CA(4)(b)(ii) require that the other reason that carry "sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked"?

Federal Court (Full Court). Can it be said that "s 501G(1) when read with reg 5.02, does not state that the document must be given by a method prescribed for the purpose of giving documents to a person in immigration detention, and the Minister may, by operation of s 494A(1), give the document to a person by any method that he or she considers appropriate"?

Federal Court. The Tribunal obtained the sponsor’s movements record after the hearing and took that evidence into account in affirming the decision without giving the appellant an opportunity to be heard about the evidence of the sponsor’s travel and the couple’s time apart in relation to whether compelling reasons existed. The movement records had a direct bearing on the veracity of the appellant’s "compelling reasons" claim. Did that constitute a failure to comply with ss 359A or 360 of the Migration Act 1958 (Cth)?

Federal Court. Section 477(1) of the Migration Act 1958 (Cth) provided that an application for judicial review "must be made to the court within 35 days of the date of the migration decision". Was it "necessary that an application has been made, accepted for filing and has become part of the records of the court before it is an ‘application … made to the court’ for the purposes of the time stipulated in s 477(1)"?