Case Law Updates

Federal Court (Full Court). Is it "permissible for the Court to speculate as to how the Tribunal might have reasoned or what conclusions it might have reached if it had not made the error in question"?

Federal Court. Is one reason why there may be no real prospect of removal becoming practicable that the Migration Act 1958 (Cth) itself imposes a statutory preclusion on the removal of the applicant? If so, did s 198(11) have the effect that removal of the applicant was only permitted to a regional processing country?

Federal Court (Full Court). Do the terms "at the time of the birth” in s 16(2)(a) of the Australian Citizenship Act 2007 (Cth) mean the moment the child “physically emerges from the mother or gestational carrier”, instead of a period of indefinite duration?

Federal Court (Full Court). Does a failure to perform the Secretary’s duty under s 418(3) of the Migration Act 1958 (Cth) to give the Tribunal the documents that are relevant to the review invalidate a subsequent decision by the Tribunal?

Federal Court (Full Court). Can it be said that, for para 9.2(1)(a) of Direction 90, "evidence or findings which reflect that the appellant misuses alcohol and drugs, has a propensity for poor behaviour or committing crimes while intoxicated and has required rehabilitative intervention does not compel a finding that the appellant has a dependency on alcohol amounting to a “health issue”, let alone one that would impede his reintegration in [his home country]"?

Federal Court (Full Court). Can a subclass 485 visa applicant who nominated a visa stream in the visa application form seek to satisfy the criteria in Schedule 2 of the Migration Regulations 1994 (Cth) for the other stream?

Federal Court. Were the matters captured by s 34(2)(a), s 34(2)(b) and s 34(c) of the Australian Citizenship Act 2007 (Cth) mandatory considerations for the purpose of the exercise of the discretion in s 34(2)?

Federal Court. In reviewing a decision made under s 501CA(4), did the Tribunal deny the appellant procedural fairness by failing to put him on notice of an adverse conclusion which was not obvious on the material, namely that the “best interests of the children consideration” might be a factor against him?

Federal Court. Did the respondents owe a duty of care to limit the duration of the applicant’s detention to that required for the purpose of his removal from Australia as soon as reasonably practicable from the time of his written request to be removed made under s 198(1) of the Migration Act 1958 (Cth)?

Federal Court. Is the validity of an application to the Tribunal under s 500 of the Migration Act 1958 (Cth) a jurisdictional fact? By finding that the review application was out of time, did the Tribunal implicitly found that that application was invalid? Did the mere sending of a bundle of documents to the Tribunal constitute a valid Tribunal application?