Case Law Updates

Federal Court. Can it be said that, in forming a view, for the purposes of r 1.15AA(1)(e) of the Migration Regulations 1994 (Cth), "as to whether the assistance cannot reasonably be (a) provided by any other relative of the resident (being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen), or (b) obtained from welfare, hospital, nursing or community services in Australia, it is necessary for the Tribunal to have regard to the nature and extent of the relevant person’s need for direct assistance in attending to the practical aspects of daily life"?

Federal Court. Was the Tribunal allowed to 'net off’ or offset against one another the various factors that it took into account when considering under cl 14.5 of Direction 79 the extent of impediments that the Applicant may face if removed from Australia?

Federal Court. Are the words "before the Minister" in s 473DC(1)(a) of the Migration Act 1958 (Cth) confined to information that was before the Minister in an applicant's application? Or is information "before the Minister" so long as a delegate has "actual awareness" of the information, whether or not it formed part of the application?

Federal Court. Does the IAA need to "hold an interview merely because it was minded to reach a different credibility finding from a delegate"? Are the ratio of the FCAFC's decision in DPI17 and the High Court's decision in ABT17 "confined to an instance in which the delegate’s overturned finding had been overtly and significantly based on an express assessment by the delegate of the applicant’s demeanour"?

Federal Court. In MZAPC, the High Court held that an error in the form of non-compliance with the condition that the "ultimate decision" that is made lie within the bounds of reasonableness is material by definition and thus jurisdictional. Does that ruling apply to legal unreasonableness in the decision-making process?

Federal Court. In light of the High Court decision in MZAPC, is it necessary for a court to consider materiality as a separate issue after finding that an administrative decision was legally unreasonable?

Federal Court. Is the question of indefinite detention a relevant consideration in the exercise of the task under s 36 of the Migration Act 1958 (Cth)?

Federal Court. Does s 501(10)(a) of the Migration Act 1958 (Cth) apply to a formal act or judicial act or order of conviction, but not to a finding of guilt? Can it be said by reason of s 38(2) of the FCA Act and r 25.13.4 of the High Court Rules 2004 (Cth) that, as the Federal Court Rules 2011 (Cth) make no particular provision in respect of the time within which a writ of mandamus should be returned, "unless otherwise ordered by the Court or a Justice, a writ of mandamus must be returnable within 14 days from service of the writ"?

Federal Court (Full Court). Is the Minister's ‘decision’ not to afford natural justice in exercising power in s 501BA(2) a migration decision listed in any of s 476A(1)(a)-(d), with the result that the Federal Court lacked jurisdiction to review that 'decision'? Was the power in s 501BA conditioned by an obligation to consider whether to afford procedural fairness? If not, can it nevertheless be said that "the Minister’s choice as to whether to afford a visa applicant natural justice before deciding whether to cancel the visa might be reviewable for legality"?

Federal Court. Is a valid decision under s 501(3A) a precondition to the exercise of AAT's powers under s 501CA(4)? For the purpose of 501CA(4)(b), is AAT "confined to the narrow version of the character test in s 501(3A)(a)"? Does FCA have original jurisdiction to review a decision made under s 501(3A)? If not, does it have accrued or associated jurisdiction to review a decision made under s 501(3A) where it has original jurisdiction to review a decision made under s 501CA(4)? Is AAT allowed to take into account cl 9.4.1 of Direction 90 when considering the weight to be given to the expectations of the Australian community?