Case Law Updates

Federal Court.The OMARA cancelled the Respondent's registration as a migration agent under s 303(1)(a) of the Migration Act 1958 (Cth). The Respondent then sought review by the Tribunal, pursuant to s 306. Did the Tribunal have power under s 311A to bar the Respondent from being a registered migration agent, in circumstances where the decision under review had been made under s 303(1)(a)?

Federal Court. When a single judge of the FCA disagrees with previous decisions of single judges of the FCA, is the question whether those previous decisions should be followed out of comity, rather than whether they are "plainly wrong"? Is a translation provided to the IAA, but not to a delegate, of a document that was before the delegate "new information" for the purpose of s 473DC of the Migration Act 1958 (Cth)?

Federal Court. Minister found that child pornography offences for which Applicant was convicted were "offences against vulnerable member of the community". Was the Minister referring to members of the Australian community, despite the fact the location of the children involved was unknown? When deciding under s 501CA(4) whether to revoke the mandatory cancellation of a visa, was Minister required to consider that Applicant also held at the same time another visa that would be cancelled by operation of s 501F(3)?

Federal Court. Can it be said that "information about conditions in a specific country (usually called “country information”) may include information about an identified or reasonably identifiable individual" and therefore that country information may include "personal information" for the purposes of the Migration Act 1958 (Cth)?

Federal Court. Was the Applicant "entitled to have his claims for protection in respect of Nauru determined and, if found to be well founded, not to be refouled to Nauru", in light of the omission in s 197C of the Migration Act 1958 (Cth) to a reference to s 198AD, despite the Minister's power to take him to Nauru pursuant to s 198AD and despite the fact that the Migration Act does not provide a statutory mechanism to determine such a claim?

Federal Court (Full Court). Does s 198AH(1A) create jurisdictional facts, in the sense of facts that a court can and should determine for itself? In determining pursuant to s 198AH(1A)(c) whether a transitory person "no longer needs to be in Australia for the temporary purpose", should the temporary purpose merely reflect the statutory language of the now repealed s 198C, namely being brought to Australia for "the temporary purpose of medical or psychiatric assessment or treatment", or should the purpose be more specifically identified?

Federal Court (Full Court). Was the standard of protection in s 36(2B)(b) "satisfied by a conclusion that the State authority in question operates an effective legal system for the detection, prosecution and punishment of acts constituting serious harm", regardless of the circumstances of the individual non-citizen? The Applicant sent the FCCA a time extension application on 2 July 2019, but was only accepted for filing by the Registry on 1 August 2019? Was the application nevertheless deemed to have been filed on 2 July 2019?

Federal Court (Full Court). Does s 473CB(1) of the Migration Act 1958 (Cth) require the Secretary to give the IAA the media or record in which information is stored or located, as opposed to the information itself? Should an obligation to "create a permanent record of information given to the delegate by a visa applicant" be implied into Division 3 of Part 2 and into the "review on the papers" mechanism created by Part 7AA of Act?

Federal Court. In determining pursuant to cl 13.1.1(1)(e) of Direction 79 "whether there is any trend of increasing seriousness", should the trend be determined by reference to the dates of the offending, as opposed to the dates of the conviction for such offending? If a particular offending is followed by a less serious offending, does that necessarily mean that the trend of offending is of decreasing seriousness? Is the determination under cl 13.1.1(1)(e) a jurisdictional fact?

Federal Court. Is the power under r 36.75(2) of the Federal Court Rules 2001 (Cth) to set aside or vary an order dismissing an appeal discretionary? What are the relevant considerations in the exercise of the power under r 36.75(2)? Can it be said that "the Tribunal, by indicating that 'it would think about' whether to seek a translation represented that it would inform the applicant one way of its consideration and allow the applicant to respond"?