Case Law Updates

Federal Court. The Full Court held in Thornton that a finding of guilt as a juvenile is effectively expunged for the purposes of considering pursuant to Direction 90 the nature and seriousness of a non-citizen’s offending. Is Thornton distinguishable if the Tribunal considers juvenile's conduct as “other serious conduct”, instead of as criminal conduct?

Federal Court. Can it be said that s 500(6H) of the Migration Act 1958 (Cth) "does not prevent an applicant who has not given two business days’ notice of proposed oral evidence prior to the commencement of the hearing, from relying upon that evidence as long as at least two business days’ notice is given prior to the resumption of the hearing following an adjournment"?

Federal Court. In determining the likelihood or prospect of the Applicant's removal from Australia in the reasonably foreseeable future, was it "appropriate to use evidence about how long other removals have taken, how long inquiries have taken, how long responses to inquiries have taken" as evidence of reasonableness?

Federal Court. Can the power in s 43(1)(c)(ii) of the AAT Act only be exercised where, to give effect to the Tribunal’s conclusions, it is appropriate to set aside the decision under review but the Tribunal is unable to make a decision in substitution for the decision set aside? Did the impossibility of being satisfied about relevant matters entitle the Tribunal to not weigh the factors in Direction 90 in the balance and remit the matter to the Department for reconsideration? Was the applicant Minister required to establish materiality of error? If so, was that burden onerous?

Federal Court (Full Court). Were the best interests of the children under Direction 90 to be viewed through the prism of what the appellant would do if the visa was refused? Does the fact that the Tribunal was aware that the interests of the relevant minor children differed and the extent to which they did and that the appellant did not put that difference in issue before the Tribunal mean that the Tribunal engaged in the required weighing exercise?

Federal Court (Full Court). In order to comply with s 494D of the Migration Act 1958 (Cth), does Form 956 need to state that the authority conferred is for the Minister to give documents to the authorised recipient, instead of the person concerned? Did Form 956 authorise an agent to receive communications from the Department about the revocation of visa cancellation, even though it only indicated that assistance was provided with an "application process"?

Federal Court (Full Court). Was the appellant Minister, who elected to make a personal decision under s 501CA(4) of the Migration Act 1958 (Cth), required to personally consider the respondent's representations? Or could he merely rely on a Departmental summary of such representations? If he could not rely on a summary, did he consider those representations? Which party bore the onus, on appeal, on the question of whether the Minister considered those representations?

Federal Court (Full Court). Did detention in a Youth Justice Centre involve an element of punishment, with the result that such a kind of detention was a form of punitive detention? Was the meaning of “sentenced to a term of imprisonment” in s 501(7) of the Migration Act 1958 (Cth) intended to depend on the different sentencing regimes in diverse jurisdictions? Did a “term of imprisonment” within the meaning of s 501(7)(c) also include non-punitive imprisonment?

Federal Court (Full Court). Do the definition of "non-refoulement obligations" under s 5(1) of the Migration Act 1958 (Cth) or s 197C(1) satisfy the description under para 9.1(1) of Direction 90 of being “tests enunciated in the Act”?

Federal Court. Was a delay of almost 4 years in deciding a protection visa application very lengthy? Is it reasonable for the Minister to consider s 501A for some period? Even though the Applicant's case was about the delay after the Tribunal remitted the matter to the Department, should this delay be considered in light of a previous delay? Is an absence of resources a justification for delay? Could the Minister further delay making a decision on the basis of a pending criminal trial?