Case Law Updates

Federal Court (Full Court). Can it be said that, "in conducting a review of a non-revocation decision under s 501CA(4) of the Act, the Tribunal must give meaningful consideration to a clearly articulated and substantial or significant representation concerning the risk of harm to the former visa holder if returned to his country of nationality independently of a claim concerning Australia’s international non-refoulement obligations, and that a failure to do so may give rise to jurisdictional error"?

Federal Court (Full Court). Should the Tribunal should have considered, in making a decision under s 501C of the Migration Act 1958 (Cth), "the consequences for Australia of taking a decision facially contrary to the central provisions of the United Nations Convention on the Rights of the Child", based on the FCAFC's decision in FAK19? Did anything in the nature of the FCA's discretionary power with respect to costs require any particular consideration of pro bono representation?

Federal Court. May there be cases where, "having initially rejected a request to hear oral evidence from a person, the Tribunal may be obliged to re-consider the request having proper regard to the nature and content of evidence later given in writing by that person, assessed in light of the issues to be determined"?

High Court. Can a couple live "separately and apart" even when they reside in the same home? Is it possible for a couple who maintain "separate residences" to not be living separately and apart, so long as they live as a "single household"?

Federal Court. Can it be said that "any violation of Australia’s international obligations is capable of bearing upon Australia’s national interest"? If so, does it follow that, "in evaluating the national interest, each and every decision-maker, irrespective of the statutory and factual context, had to consider any violation of Australia’s international obligations as part of the consideration of the national interest"?

Federal Court. Was there an expectation that the Tribunal would refer to the child’s views, given the centrality of those views to the Applicant’s case and the requirement under para 8.3(4)(f) of Direction 90? In determining through reasonable conjecture whether the Tribunal’s error was material to the outcome and thus jurisdictional, was the standard of reasonable conjecture equally undemanding?

Federal Court (Full Court). By reason of s 82(2) of the Migration Act 1958 (Cth), the Appellant's ETA ceased to be in effect upon the grant of a subclass 600 visa. When the latter visa ceased to be in effect, was the ETA reactivated by operation of law?

Federal Court. Did s 501G(3) satisfy the phrase in s 494A(1)(b)(ii) of a provision that "does not state that the document must be given ... by a method prescribed for the purposes of giving documents to a person in immigration detention”? If s 494A(1) applied, did ss 494B(5)(b) and (d), 494C(1) and (5) and s 494D(1) apply? Did the word “giving” in r 5.02 imply a requirement to hand a written notice of the delegate’s non-revocation decision personally to either the applicant or his solicitor? If not and the written notice occurs by email, must it be actually received to satisfy r 5.02?

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 Court (Full Court). If, following the affirmed refusal by the Tribunal of a protection visa application, the Minister intervenes under s 417(1) of the Migration Act 1958 (Cth), does the protection visa application remain refused, with the result that the bar under s 48A prevents a further protection visa application being made while the non-citizen is in the migration zone?