Case Law Updates

Federal Court (Full Court). In the decision in Stewart  plainly wrong? If an invitation issued under s 501CA contained an error in the specification of the deadline for the making of representations, can it nevertheless be said that whether the invitation is invalid will depend on the extent and consequences of the error? If an invitation issued under s 501CA is invalid, does it follow that the anterior mandatory cancellation decision itself under s 501(3A) is also invalid?

Federal Court. Is information supplied by the subject of an administrative decision absolutely excluded from the obligation to afford that person procedural fairness?

Federal Court (Full Court). Does the deeming effect under r 2.55(7)(a) apply to r 2.52(2)(b)? Does the mere fact that a State prison can be a place of immigration detention mean that a person held there is "in immigration detention"? Can it be said that "the act of “an unidentified person” giving him the notice of cancellation cannot amount to “service” within the meaning of" r 5.02?

Federal Court. In Makasa, the High Court decided that the discretionary power under s 501(2) of the Migration Act 1958 (Cth) could not be enlivened twice based on the same circumstances. Does Makasa provide support for the proposition that a decision-maker cannot consider, for the purpose of the exercise of the discretion under s 501(1), convictions that have been considered in the exercise of the discretion in a prior decision?

Federal Court. Was the prospect of indefinite detention a necessary and foreseeable consequence of the Tribunal’s decision which should have been considered, as the the obligation to consider it was not limited to "circumstances where the Tribunal was satisfied that Australia would be in breach of its international non-refoulement obligations should the applicant be returned" to their home country? In other words, does the Full Court decision in DQM18 prevail over AZAFQ to the extent of any inconsistency?

Federal Court (Full Court). Can it be said that, "if executive power is to be exercised with a conscious understanding that it will result in the long term separation of a child from a loving and supporting parent with likely long term harm to the children then, given the nature of the obligation to give reasons in the present case, it is to be expected that the seriousness of that consequence and its consideration would both be manifested expressly in the reasons of the Minister"?

Federal Court. Could a mistranslation error leading to a finding that an applicant lacked credibility fall within the type of error referred to by the High Court in DVO16?

Federal Court. Is the Tribunal bound to uncritically accept an expert's opinion? If not, is it nevertheless bound to do so if the expert's opinion was adduced before the Tribunal by a non-citizen and the Minister was a party who did not adduce any evidence to contradict that opinion?

Federal Court. For the purpose of addressing the consideration in cl 6.3(4) of Direction 79, can it be said that it is not permissible for the Tribunal to adopt a "reasonably-minded" member of the Australian community test and that there is a deemed expectation by the use of the preface “The Australian community expects”?

Federal Court (Full Court). Was the Tribunal entitled to re-characterise the Appellant's conduct and, in doing so, depart from the characterisation adopted by the sentencing judges in a significant way, by labelling the conduct as 'predatory'? In other words, was the Tribunal entitled to go behind the sentencing remarks? If so, does it follow that the Tribunal "was required, in the circumstances, to inform the appellant that it may form a different view and to invite comment from the appellant"?