Case Law Updates

High Court. Were the conditions in cll 070.612A(1)(a) and (d) of Schedule 2 to the Migration Regulations 1994 (Cth) prima facie punitive? If so, can it be said that there is no legitimate non-punitive purpose justifying the powers, with the result that such powers should be characterised as punitive and therefore as infringing on the exclusively judicial power of the Commonwealth in Ch III of the Constitution?

Federal Court. After judicial review proceedings commenced, the Minister's Department took steps that resulted in the applicant succeeding in obtaining the outcome which he sought on judicial review. Is this an example of surrender, with the result that the applicant should obtain costs?

Federal Court. In circumstances where the Court could not grant mandamus compelling the consideration of the requests for Ministerial intervention, was there utility in granting certiorari and prohibition?

Federal Court (Full Court). Was Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 wrongly decided?

Federal Court. Is a child a party to migration judicial review proceedings only if a person is appointed their litigation representative?

Federal Court. Are the formative years confined to the period of a person's life when they were a child?

Federal Court. Even though the applicant had not been convicted in court, the Tribunal found that he had been 'convicted'. Did the Tribunal finding involve a misinterpretation of the law? Could the Tribunal have reasonably considered the view of the applicant's minor child to love the applicant to be irrelevant to the best interests of the child?

High Court. In some cases, may a statutory provision by which: a right of appeal is conferred impliedly grant jurisdiction to hear the appeal; jurisdiction is granted to hear an appeal impliedly confer a right to appeal? Is a provision that grants jurisdiction to a court to be construed "with all the amplitude that the ordinary meaning of its words admits"?

Federal Court (Full Court). In the context of s 501CA(4) of the Migration Act 1958 (Cth), the Tribunal said: "the Tribunal does not consider that drugs are as readily available in detention as they are in the community". Was that a finding for which specific evidence or other material was required? Or could it be made based on the Tribunal’s personal or specialised knowledge?

Federal Court. When assessing under para 8.1.1 of Direction 99 the nature and seriousness of the Appellant's conduct to date, is the fact that he remained and worked unlawfully in Australia an irrelevant consideration?