Case Law Updates

Federal Court (Full Court). In the context of s 501CA(4) of the Migration Act 1958 (Cth), the Tribunal said: "the Tribunal does not consider that drugs are as readily available in detention as they are in the community". Was that a finding for which specific evidence or other material was required? Or could it be made based on the Tribunal’s personal or specialised knowledge?

Federal Court. When assessing under para 8.1.1 of Direction 99 the nature and seriousness of the Appellant's conduct to date, is the fact that he remained and worked unlawfully in Australia an irrelevant consideration?

Federal Court (Full Court). Was the consequence of s 347(1)(c) of the Migration Act 1958 (Cth) and r 4.13(4) of the Migration Regulations 1994 (Cth) that an amount of 50% was payable whether or not the “Request for Fee Reduction” was ultimately successful? If a Tribunal application is not accompanied by the application fee, does the Tribunal have a duty to review the decision?

Federal Court (Full Court). Can the Court set the amount of costs in migration litigation at a level that exceeds or is less than the scale in Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules)? If so, does the legislative scheme impose on an applicant for costs any burden to prove that departure from the scale of costs in Schedule 2 to the GFL Rules is justified or warranted? Can a successful judicial review applicant recover the filing fee, in addition to costs incurred with professional fees?

Federal Court. Is the Tribunal required under Direction 99 to "consider whether the decision is in the best interests of a particular child if the facts known to the Tribunal are such as to raise a realistic question as to whether the decision will affect that child"?

High Court. Is the statutory consequence of non-compliance with a statutory condition of an exercise of power as much a question of statutory construction as is the content of the condition?

High Court. Can it be said that, while "the broad principle is that the Courts ... must ... administer justice in public", the exceptions to this broad principle are "themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done"?

Federal Court (Full Court). Is the Tribunal required to apply the Direction in force at the time when the application for merits review is made, instead of the Direction in force at the time when the Tribunal makes its decision? Can the Tribunal remit a matter for reconsideration, instead of re-exercising the discretion under s 501(1) of the Migration Act 1958 (Cth) for itself?

Federal Court. The Applicant, an unauthorised maritime arrival, made a request for Ministerial intervention under s 46A(2) of the Migration Act 1958 (Cth). Before determining that request, the Applicant was told that he would be removed from Australia. In an application for interlocutory injunction to restrain his removal, did the balance of convenience favour the respondents because removal would frustrate the duty under s 198?

Federal Court (Full Court). Is the Minister's compliance with the model litigant obligations a constraint on the exercise by the Tribunal of its powers? Can a change to a foreshadowed hearing procedure "give rise to procedural unfairness where the affected person does not have the chance to object to the change"?