Case Law Updates

High Court. Can it be said that the giving of the notice, particulars and invitation under s 501CA(3) of the Migration Act 1958 (Cth) "will not be legally efficacious if those documents are given to a person who lacks legal capacity to make decisions with respect to the notice and invitation at the time the notice and invitation was delivered to them, including lacking the capacity to grant an enduring power of attorney or to apply for a guardian to be appointed in relation to the notice and invitation"?

High Court. Was Pearson v Minister for Home Affairs [2022] FCAFC 203 wrongly decided?

Federal Court. Was it irrational or illogical for the Minister to give significant weight to the protection of the Australian community towards his satisfaction of the national interest under s 501A(3) of the Migration Act 1958 (Cth) in circumstances where, as the Applicant would not be taken into detention and would continue to reside in the community by reason of NZYQ?

Federal Court. Was the reasoning by which the Tribunal reached its conclusion that the risk of reoffending was “not negligible” irrational or unreasonable, "in that it was based on the nature of the second offence committed by the visa applicant and his state of mind at the time that he committed that offence, without any connection to the visa applicant’s present state of mind or his current attitudes towards sexual offending"?

Federal Court. Was the nature and severity of the risk to Australia’s security a consideration that the delegate was legally required to take into account in exercising the discretion in s 128 of the Migration Act 1958 (Cth)?

Federal Court. Can it be said that "the interest protected by public interest immunity, once a court has determined that such immunity attaches to documents or a class of documents, require that the contents of such documents cannot be disclosed to any person or deployed in evidence in curial proceedings", and that it is "implicit that such material cannot be disclosed to any judge who is called on to determine such cases"?

Federal Court. Is s 196(4) of the Migration Act 1958 (Cth) limited "to the power to grant interlocutory relief in proceedings for the judicial review of a visa cancellation decision, as opposed to proceedings challenging the lawfulness of detention (such as a proceeding for a writ of habeas corpus or an order in the nature of habeas corpus, or analogous declaratory relief)"?

Federal Court (Full Court). As good character was not required when the Appellant was granted citizenship as a minor, should the Court "distinguish Jones on the basis that the power to revoke his citizenship based on the commission of a serious offence before he became an Australian citizen is not reasonably capable of being seen as necessary to protect the integrity of the naturalisation process, and is therefore properly characterised as punitive in nature"?

High Court. Were the conditions in cll 070.612A(1)(a) and (d) of Schedule 2 to the Migration Regulations 1994 (Cth) prima facie punitive? If so, can it be said that there is no legitimate non-punitive purpose justifying the powers, with the result that such powers should be characterised as punitive and therefore as infringing on the exclusively judicial power of the Commonwealth in Ch III of the Constitution?

Federal Court. After judicial review proceedings commenced, the Minister's Department took steps that resulted in the applicant succeeding in obtaining the outcome which he sought on judicial review. Is this an example of surrender, with the result that the applicant should obtain costs?