Case Law Updates

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"?

Federal Court (Full Court). Was the Appellant a non-alien who was not subject to the Migration Act 1958 (Cth), with the result that his detention under s 189(1) of the Act was unlawful, because: he was "accepted by the Australian body politic and community as a citizen ...; the fact that he renounced that citizenship in 1995 does not change his non-alien status"; or "he has the essential characteristics of a non-alien, based on a holistic assessment of his circumstances"?

Federal Court (Full Court). Can it be said that "a process of reasoning that interferes with or undermines a fundamental common law right [such as the privilege against self-incrimination] may for that reason be characterised as legally unreasonable"?

Federal Court. Can it be said that, "by reason of s 426B(6) of the [Migration Act 1958 (Cth)], the obligation to provide an applicant with a statement describing the effect of ss 426A(1B) to (1F) is inextricably linked with the obligation to provide an applicant with a copy of the written statement of the decision made under s 426B(2)"?

Federal Court (Full Court). In Katoa, the High Court decided that the Federal Court was not limited, in assessing the merits of a judicial review application, to a reasonably impressionistic level of such merits, when considering whether to grant a time extension within which to bring that application. Should Katoa be extended to the consideration of whether to grant leave for a new ground of judicial review to be agitated for the first time on appeal?

High Court. Will there "generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration"? When a Tribunal "errs by denying a party a reasonable opportunity to present their case", does reasonable conjecture "require demonstration of how that party might have taken advantage of that lost opportunity"?

Federal Court. Can it be said that, "in relation to the decisional process required by s 65(1), the Minister will only have misconstrued his power under s 501(1) if the facts found by the Minister inconsistent with those found by the Tribunal are critical to the Minister’s decision to refuse the visa"? Was it illogical "for the Minister to find that the applicant was a risk to the Australian community in light of the Tribunal’s previous finding that the applicant was not a danger to the Australian community in accordance with s 36(1C) of the Act"?