Case Law Updates

Federal Court. In an application for habeas corpus, is the issue "whether the applicant’s current detention is unlawful, not whether his or her detention has been unlawful in the past"? If a person is lawfully placed in immigration detention for a permissible purpose but that purpose is lost, with the result that detention becomes unlawful, can the detention regain that permissible purpose and therefore its lawfulness?

Federal Court. The Minister purported to cancel tje Appellant's visa under s 501(2), but that decision was quashed in court. The Minister then purported to cancel the Appellant's visa under s 501(3), but that decision was also quashed in court. The Minister eventually cancelled the visa under s 501(3) 'again'. Is the power to cancel a visa under s 501(3) spent if the Minister previously exercised the power to cancel under s 501(2)?

Federal Court. If a visa is cancelled under s 501(3A) on the basis that the person failed the character test by reason of certain offences and that cancellation is revoked under s 501CA(4), can the visa be cancelled again under s 501(3A) on the basis of the failure to pass the character test by reason of the same offences? If not and a delegate or the Minister nevertheless does so, is the AAT allowed to review the non-revocation of the second cancellation decision?

Federal Court (Full Court). Cl 14.4(1) of Direction 79 required decision-makers to consider, under s 501CA(4), the "impact of a decision not to revoke" the mandatory cancellation of a visa on members of the Australian community, including victims and relatives of victims of the former visa holder. Should cl 14.4(1) be interpreted as referring to the impact of a decision to revoke, as opposed to the impact of a decision not to revoke?

Federal Court (Full Court). Did s 33(1) of the Acts Interpretation Act 1901 (Cth) apply to s 501CA of the Migration Act 1958 (Cth), with the result that the Minister had the power, after having issued an invitation under s 501CA(3)(b), to issue another invitation that was effective for the purposes of s 501CA(4)?

Federal Court. IMMI 17/016 specified that applications for a Aged Dependent Relative (Class BU) visa had to be made by post or "delivered by courier service". Did the delivery by an employee of the Appellant's law firm satisfy the latter requirement? Or was it necessary for the delivery to be made by a private company that provides courier delivery services, with the result that the application delivered by that employe was invalid?

Federal Court. Can the test concerning the materiality of an error be expressed in the following way: "absent a Court being satisfied that, but for the breach, there is a reasonable possibility that different outcome could have been reached by a decision maker, a failure to accord natural justice will not be jurisdictional error"?

Federal Court. Was the FCA decision in AJL20 plainly wrong? Was it reasonable for the Department to enable the Applicant's Tribunal review application to be determined before he was in fact removed to Vietnam? Does the phrase “as soon as reasonably practicable” in s 198 of the Migration Act 1958 (Cth) "require the Commonwealth to take any and all steps reasonably practicable for it to take towards the applicant’s removal"?

Federal Court (Full Court). Is the threshold that must be met by an application that seeks to establish that a non-publication order is 'necessary' under s 37AG(1)(a) of the FCA Act high? Do "mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears" suffice? Is the Court permitted to undertake a balancing exercise? Is the possibility that the Appellant could experience some sort of difficulty obtaining employment on the basis of the publicly available judgment sufficient?

Federal Court (Full Court). Is the change of legal representation on appeal usually sufficient to justify the grant of leave to rely on ground of judicial review not relied on at first instance?