Case Law Updates

High Court. Is the common law presumption against extraterritorial operation more accurately labelled as a "presumption in favour of international comity"? Did the Federal Court of Australia Act 1976 (Cth) confer jurisdiction on the Federal Court? Can it be said that "Federal courts, other than the High Court, owe their jurisdiction to laws enacted under s 77(i) of the Constitution"?

Federal Court. The appellant answered a question in a student visa application form, indicating he had never had previous visa refusals. In reality, he had had student visa refusals. Was it unnecessary for the Tribunal to explain in any detail the basis upon which it considered the impugned answer was relevant to cl 500.212 (GTE criterion)? Did PIC 4020(5)(b) require determination of whether cl 500.212 was satisfied? May an applicant's provision of such false or misleading information be a 'relevant matter' within the meaning of cl 500.212(c)?

Federal Court. In Nathanson, Kiefel CJ, Keane and Gleeson JJ held in the context of a denial of procedural fairness that the standard of reasonable conjecture, used to determine whether an error was material and thus jurisdictional, was "undemanding". Is reasonable conjecture applicable in the context of an assessment of the materiality of errors in the form of misinterpretation of s 473DD of the Migration Act 1958 (Cth)? If so, is the standard of reasonable conjecture also undemanding in such a context?

Federal Court. Would the word "health" in para 9.2(1)(a) of Direction 90 "ordinarily be understood to mean any aspect of a person's physical wellbeing"? Did the Tribunal err by confining the term 'health' in para 9.2(1)(a) of Direction 90 to only include currently manifested health issues and difficulties?

High Court. Does the question of whether a decision is reviewable under Part 5 of the Migration Act 1958 (Cth) depend on a non-citizen's ability to satisfy the requirements in s 347(3A)?  

Federal Court. Section 36(1C)(b) of the Migration Act 1958 (Cth) referred to a protection visa applicant being "a danger to the Australian community"? Must the nature of the danger "be one to the safety and wellbeing of the Australian community at large, in general or as a whole, rather than to “one or more members”"? If the delegate's protection visa refusal was made before s 36A was added, did this provision apply to the AAT?

Federal Court. Should the following italicised words be implied into s 501(6)(d)(i) of the Migration Act 1958 (Cth): "person does not pass the character test if, during the period of the visa there is a risk that the person would engage in criminal conduct in Australia"?

Federal Court. Can it be said that "a notice [such as form 956] which does not state that the authority conferred is for the Minister to give documents to the authorised recipient, instead of the person concerned, is not a notice for the purposes of [s 494D of the Migration Act 1958 (Cth)]"?

Federal Court (Full Court). Was the Full Court's decision in CWY20 contradicted by the High Court's decision in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17?

Federal Court (Full Court). Can the Parliament "abolish natural justice to the extent that it no longer applies to an officer of the Commonwealth in the context of constitutional writs under s 75(v) of the Constitution"? Can it be said that s 501BA(3) of the Migration Act 1958 (Cth) "impermissibly confines or restricts the judicial power conferred on the High Court under s 75(v) of the Constitution and is therefore invalid"?