Case Law Updates

Federal Court. Is there a distinction between embarking on the evaluative task in circumstances where a discretion is being exercised such as in s 501(1) and one in which there is no discretion such as in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). If the Tribunal was required to make a decision under the former but did so by reference to the latter provision and that involved an error, was the error material?

Federal Court (Full Court). Was the Tribunal's direction, requiring the Applicant to attend and participate in a consultation with a psychiatrist, an impermissible interference with the Applicant's fundamental rights to liberty or privacy? Did the Tribunal have the power to stay the proceedings for non-compliance with its direction?

Federal Court. Did the balance of convenience strongly favour the grant of an interlocutory injunction in that, although an injunction would cause the respondents inconvenience "in the form of having to retain the applicant in detention at public expense and the need to alter arrangements that have no doubt involved at least some administrative effort", the applicant's ability to remain in Australia and seek protection was at stake?

Federal Court (Full Court). In reviewing a non-migration decision of the respondent, the Tribunal copied 64 of the 67 paragraphs of the respondent's submissions without attribution or saying that it agreed with what the respondent had submitted. Did the Tribunal fail to properly exercise its jurisdiction to conduct a "review" of the kind it was required to conduct?

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 (Full Court). Did representative authorise payment of AAT application fee whatever the fee would be? Can most of the fee be paid by the statutory deadline and the difference afterwards? Does the fee accompany the application if it is paid after the application is lodged, so long as paid before the deadline?

Federal Court. Is the ongoing validity of a cancellation effected under s 501(3) of the Migration Act 1958 (Cth) conditional upon timely compliance with the requirements of s 501CA? Does the use of the word 'may' in s 501CA(4) mean that the decision-maker retains the discretion not to revoke a visa cancellation even if satisfied that the non-citizen passes the character or that there is 'another reason' to revoke?

Federal Court (Full Court). After the Full Court's decision in Pearson was handed down, s 5AB was inserted into the Migration Act. Does the reference in s 5AB of the Migration Act to a “single sentence imposed by a court in respect of 2 or more offences” capture aggregate sentences within the meaning of s 53A(1) of the Crimes (Sentencing Procedure) Act (NSW)?

Federal Court (Full Court). Can a formal submission only be made that a decision of another Full Court is plainly wrong and should not be followed? Does it follow from the fact that a delegate had no power to cancel a visa under s 501(3A) of the Migration Act 1958 (Cth) that the discretion to revoke the original decision under s 501CA(4) was never enlivened? Has the Appellant's visa, which was invalidly cancelled as per the reasoning in Pearson, remained in full force and effect, whatever may be the effect of the Bill if ultimately enacted into law with retrospective effect?

Federal Court. Section 426(1A)(b) provided that if an applicant failed to appear before the Tribunal, the Tribunal could dismiss the application without any further consideration of the application or information before it. Was the power in s 426(1A)(b) a discretion which must be exercised legally reasonably?