Case Law Updates

High Court. The Tribunal found that both claimants were owed protection, and remitted the matters to the Department. Then, without deciding whether to grant them protection visas, the Department granted them other visas. As per NZYQ, removal from Australia was no longer a legitimate non-punitive purpose to keep them detained. Was the processing of their protection visa applications nevertheless a legitimate non-punitive purpose to keep them detained?

Federal Court. Assuming that the power in s 501BA(2) of the Migration Act 1958 (Cth) is required to be exercised within a reasonable time, and that such requirement is not complied with, is the consequence that a writ of mandamus might issue to compel the Minister to make a decision, instead of the power being treated as spent through certiorari?

Federal Court. Can it be said that, "in cases where unreasonable delay is relied upon as the basis for a writ of mandamus, the delay must have reached the critical point prior to the commencement of proceedings"?

Federal Court. Should the Court withhold the grant of constitutional relief, for instance on the basis that the applicant’s case before the Minister was founded on the premise that Al-Kateb correctly represented the law and that the Minister should apply such law in making his decision, even though NZYQ subsequently overruled Al-Kateb?

Federal Court. In making a decision under s 501BA of the Migration Act 1958 (Cth) to set aside a Tribunal decision, can it be said that the Tribunal's reasons could be considered by the Minister, although they are not a mandatory consideration?

Federal Court (Full Court). Is the question of whether a person qualifies as “a parent” under s 10B(1) of the Australian Citizenship Act 1948 (Cth) a question of fact to be determined by the Court? Can it be said that, "absent a biological parental relationship, parentage typically is a matter of intense commitment which involves acknowledging that other person as one’s own child"?

Federal Court. In exercising his power under s 501BA, are the Tribunal’s reasons for decision always a mandatory consideration? Was it legally unreasonable for the Minister to find that the applicant's risk of recidivism was dependent on whether he would have access to mental health treatment, which in turn depended on whether he would be eligible for NDIS treatment, and yet ignore that a decision under s 501BA would render the applicant a non-permanent resident and thus ineligible for NDIS treatment?

High Court. In a proceeding for a declaration that an officer exceeded the executive power of the Commonwealth in declining to refer to the Minister a request for intervention under s 195A of the Migration Act 1958 (Cth), can the Federal Court "make an interlocutory order restraining officers from removing the unlawful non‑citizen, notwithstanding the duty imposed on officers by s 198(6) to remove the unlawful non-citizen as soon as reasonably practicable, where the proceeding does not challenge the valid application of s 198(6) to the unlawful non-citizen"?

Federal Court (Full Court). Para 8.1.1(1)(a)(ii) of Direction 99 required decision-makers to consider that crimes against women "are viewed very seriously by the Australian Government". Did para 8.1.1(1)(a)(ii) require the Tribunal to consider such crimes "very seriously"? May it be "necessary for the decision-maker to take account of facts alleged to underpin a claim that non-refoulement obligations are owed where those facts are relied upon as another basis for revocation of the cancellation decision"?

High Court. Can it be said that "an order of an inferior court that is affected by jurisdictional error has no legal force as an order of that court so that, for example, a failure to obey such an order cannot be a contempt of that court"?