Case Law Updates

Federal Court. Was the Tribunal obliged under para 9.1(6) of Direction 90, in reviewing a decision made under s 501CA(4) of the Migration Act 1958 (Cth), to consider whether it was appropriate to assume that the ‘claimed harm’ would occur?

High Court. In determining whether removal to a country is practicable in the reasonably foreseeable future, can the steps practically available to be taken "be expected frequently to include administrative processes directed to removal which require the cooperation of the detainee and in which the detainee has the capacity to cooperate"?

High Court. Does functus officio address the capacity, or authority, to adjudicate a matter, whereas estoppel addresses the capacity of the litigants to litigate a matter?

Federal Court (Full Court). Did the terms of cl 8.3(4)(a)(i) suggest that decision-makers were at liberty to attribute such weight as they see fit to that factor, providing the weight they attribute is not below the threshold of “considerable weight”? In other words, did cl 8.3(4)(a)(i) contemplate that decision-makers should give the fact of residence in Australia during a non-citizen’s formative years a degree of weight somewhere in the range at or above the minimum that can be described as “considerable”?

Federal Court. In determining whether to grant an interlocutory injunction to prevent the Applicant's removal, is it sufficient that the underlying judicial review proceeding challenge only the discharge of the obligation under s 66, without directly challenging the exercise of the power under s 198 of the Migration Act 1958 (Cth)? Does the FCA have jurisdiction to declare a notification as non-compliant with s 66 of the Act?

Federal Court. Does the rule in Browne and Dunn, being one of fairness, apply equally to a trial judge as to counsel?

Federal Court. Does use of the word “means” in cl 4(1) of Direction 110 limit the definition of “family violence” to the two types of conduct as described, namely conduct that "coerces or controls a member of the person’s family" or "causes the family member to be fearful"?

Federal Court. Is the risk posed by the non-citizen in question to the Australian community a mandatory relevant consideration for the Minister when exercising the discretion under s 501A(3)(b) of the Migration Act 1958 (Cth)?

Although the AAT will defer dealing with late applications in the MRD pending an appeal to the Full Court of the Federal Court, that does not necessarily mean that late applicants should defer lodging their review applications any further

Federal Court (Full Court): ordinarily, a subclass 820 visa application will be decided first and the 801 second. However, decision makers can reverse that order in some circumstances; perhaps that means that a TSS visa can be refused before nomination is processed in some circumstances, thus denying review rights to visa applicants