Case Law Updates

Federal Court (FCA). Can it be said that, "in the ordinary course all issues of fact and law should be determined at the one time and that the [FCA] should generally exercise the power in r 30.01 of the Rules cautiously and sparingly"? 

Federal Court. For the purpose of cl 14.5 of Direction 79, do the factors to be taken into account include any social or economic support available to the non-citizen in the country to which they would be returned in the event of non-revocation under s 501CA(4) of their visa cancellation?

Federal Court. Is the criterion in s 477(2)(a) of the Migration Act 1958 (Cth) a "mere procedural checkbox having no legal consequence for the exercise of the power" to extend the time within which a judicial review application can be filed? If not, does that mean that the Federal Circuit Court cannot have regard to matters not articulated by the parties themselves?

Federal Court (FCA). Following unsuccessful requests to be removed from Australia under s 198(1) of the Migration Act 1958 (Cth), the Applicant applied to the FCA for mandamus directing the Commonwealth to do so. Subsection 476A(1) provided that, despite any other law, the FCA's "original jurisdiction in relation to a migration decision" was limited to the matters under s 476A(1)(a) to (d). Is the refusal to discharge the obligation under s 198 a "migration decision", with the result that the FCA lacked jurisdiction?

Federal Court. In determining whether an unarticulated claim nevertheless clearly arose from the materials before an administrative decision-maker, is it relevant that the non-citizen was professionally represented before that decision-maker throughout the process?

Federal Court. "Where there has been inordinate delay and that consideration weighs so heavily against an extension of time being granted" in an application for judicial review, does it necessarily follow that the applicant must demonstrate "something exceptional or out of the ordinary in the circumstances of the case to provide a countervailing justification for extending time"? If so, would it be difficult to demonstrate that circumstances are exceptional if the case sought to be advanced were not "exceptional"?

Federal Court. Can it be said that "the absence of an express finding in a Tribunal’s reasons on matters referred to in a ministerial direction does not necessitate the conclusion that no finding was made", as "a decision-maker may not refer to a particular matter because it has been found to be immaterial, or of no real significance" and as "there was no obligation on the part of the Tribunal to refer in its reasons to immaterial matters about which no substantive submissions were made, and which were not the subject of relevant evidence"?

High Court. Was the Executive's desire to comply with Australia's non-refoulement obligations an improper justification not to remove the unlawful non-citizen Respondent from Australia, by virtue of s 197C of the Migration Act 1958 (Cth)? If the Minister fails to remove a person from Australia under s 198 as soon as reasonably practicable, is the appropriate remedy an order mandating compliance by the Executive with the duty imposed by s 198, as opposed to the release of the non-citizen?

Federal Court. Will habeas corpus lie where, although a person is not an unlawful non-citizen, an officer detains him/her on the basis of a reasonable suspicion that he/she is an unlawful non-citizen? Must the suspicion that a person is an unlawful non-citizen "be objectively justifiable on the basis of relevant material, including that material which is discoverable by efforts of search and enquiry that are reasonable in the circumstances"?

Federal Court. Does the language of 362B of the Migration Act 1958 (Cth) "confine the circumstances in which the [AAT's] power to dismiss [an application for review] may be exercised to those cases where the application for review may be described as unmeritorious or where the application for review is not being actively pursued"? Does the AAT have power to conduct hearings via video-link?