Case Law Updates

Federal Court (Full Court). Do ss 100 or 111 of the Migration Act 1958 (Cth) "make the question of whether the appellant’s incorrect answers were deliberate or inadvertent legally irrelevant in the context of" the discretion to cancel a visa under s 109? Are the circumstances prescribed under r 2.41 of the Migration Regulations 1994 (Cth) for the purpose of s 109(1)(c) non-exhaustive? If so, what are the types of permissible considerations?

Federal Court. Is the so-called implied undertaking (also known as “Harman undertaking”) to the effect that "a party who seeks discovery of documents obtains it on condition that the party will make use of those documents only for the purpose of that action, and for no other purpose"? If so, does the answer suggest that the undertaking only applies to documents obtained under compulsion, as opposed to documents voluntarily provided?

Federal Court (Full Court). The Full Court discussed in detail whether single judge decisions of the Federal Court (whether in the original or appellate jurisdiction) bind Full Court decisions (whether in the original or appellate jurisdiction) and vice-versa. It also discussed whether Ali, Ibrahim and BCR16 were correctly decided and the effect of Direction 75.

Federal Court (Full Court). Commonwealth made representations to Appellant that he was an Australian citizen by granting him a passport and enrolling him to vote. He reasonably relied on those representations to his detriment in that he never applied for citizenship and became liable to visa cancellation under s 501(3A). If Commonwealth was his guardian under the Immigration (Guardianship of Children) Act 1946 (Cth) and breached its duty to apply for citizenship for him, did the breach, coupled with the representations, render the Minister equitably estopped from treating him as a non-citizen?

Federal Court (FCA). The Appellant's judicial review application to the Federal Circuit Court was dismissed. He then appealed that decision to the FCA. During FCA proceedings, the Minister identified an error by the IAA which had not been identified by the Appellant and conceded the appeal on that basis. Should the Appellant obtain an order for costs at first instance?

Federal Court. Must a non-citizen be convicted of, or charged with, an offence in order for the Minister to lawfully have regard to the alleged conduct for the purpose of s 501(3) of the Migration Act 1958 (Cth)?

Federal Court. Does FYBR set out a 3-staged process the decision maker must follow in every case in the context of the expectations of the Australian community?

Federal Court. Does NAIS prescribe that the Tribunal will make a jurisdictional error, unless it acknowledges in its reasons the existence of a substantive delay between the hearing and its decision? Can it be said that, "whenever there is an argument as to delay and the effect thereof (regardless of the length of the delay and circumstances of the case), ... the Tribunal’s reasons are necessarily irrelevant to that consideration"? Once significant delay is established, does the evidentiary onus shift to the Minister?

Federal Court. The Appellant answered in the affirmative the following question contained in a form given to him by the Tribunal: "Do you and any other applicants consent to the Tribunal deciding the review without a hearing?" Was there ambiguity as to whether consent was given for the Tribunal to proceed without a hearing? Is it "contrary to the ‘spirit’ of the Migration Act [for the Tribunal] to ask an applicant if he or she consents to a review without an oral hearing"?

Federal Court. Is an order requiring the disclosure of any record of the Minister’s locations not to be made lightly? Can it be said that, "where the Minister decides to personally exercise the power, with that decision must come the potential for the Minister’s obligations to be greater in terms of responding to procedural steps taken in pursuit of the individual’s right to seek judicial review"?