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Case Law Updates

Judgement affecting the liberty of an individual?

Federal Court: s 24(1A) of the Federal Court of Australia Act 1976 provides that an appeal shall not be brought to the Federal Court (FCA) from the Federal Circuit Court (FCCA), unless the FCA gives leave to appeal. However, according to s 24(1C), leave is not required for an appeal from an interlocutory judgement affecting the liberty of an individual. Was a no-jurisdiction judgement by the FCCA an interlocutory judgement that affected the liberty of an individual?

Reasonableness of relocation applied to children?

Federal Court (Full Court): Does the relocation principle for complementary protection claims apply to children? For instance, if a child is making a protection visa application as a primary applicant, could the child claim, through their parents, that if they return to their country, they will choose an unsafe area for the child, with the result that, if that claim is accepted, the relocation principle will not apply?

IAA required to notify of existence of non-disclosure certificate?

High Court: "This Court accepted in [SZMTA] that the giving of a notification under s 438(2)(a) ... triggers an obligation of procedural fairness on the part of the [Tribunal] to disclose the fact of notification to an applicant for review under Pt 7. [Does] the giving of a notification under s 473GB(2)(a) triggers an equivalent obligation of procedural fairness on the part of the Immigration Assessment Authority ... to disclose the fact of notification to a referred applicant in a review under Pt 7AA"?

Section 46A: procedural fairness & remedies

Federal Court (Full Court): We recently summarised a FCAFC decision which held that: the Minister had made a personal procedural decision to consider the exercise of his powers under s 46A; the exercise of the revocation power in s 46A(2C) was subject to procedural fairness. Now, the FCAFC delivered a further judgement, with remedies that gave effect to that decision. Both decisions could positively affect other unauthorised maritime arrivals who missed the deadline of 1 October 2017 for making a protection visa application.

HCA’s original jurisdiction instead of special leave to appeal?

High Court: Although this case dealt with tax law, it concerned administrative law and could therefore apply to migration matters. The High Court (HCA) observed that "no satisfactory explanation has been offered as to why the plaintiff adopted the course of seeking writs of certiorari and mandamus rather than special leave to appeal against the [judgment of the Full Court of the Federal Court]". Was that in itself a sufficient reason to dismiss the application to the HCA?

Mandatory cancellation: retrospective effect & more (Appeal)

Federal Court (Full Court): The mandatory cancellation provision, s 501(3A), was inserted into the Migration Act 1958 (Cth) in 2014 and obliges the Minister to cancel a visa if he/she is satisfied that a non-citizen has a substantial criminal record and is serving a full-time sentence of imprisonment. "What happens, then, where the non-citizen is serving a term of imprisonment at the time of the Minister’s decision (after the commencement of the mandatory visa cancellation scheme), but the non-citizen has a “substantial criminal record” only because of a different sentence of imprisonment that was served exclusively before the commencement of that scheme? Is the non-citizen’s visa liable to mandatory cancellation in these circumstances?"

Quasi-criminal, migration matters

Federal Court: This decision involved quasi-criminal AAT migration proceedings and might be a prelude to many more quasi-criminal matters to arise if & when the Migration Amendment (Strengthening the Character test) Bill 2019 is enacted, as anticipated in a submission made to Parliament by Sergio Zanotti Stagliorio and Marianne Dickie. That Bill deals with cancellation of any type of visas, not only protection visas. Here, AAT found there was a real risk Applicant would suffer significant harm if returned to Sri Lanka, but found under s 36(2C) that he was taken not to be owed protection as there were "serious reasons for considering that ... " he "committed a serious non-political crime before entering Australia". Should AAT be convinced beyond reasonable doubt? Is s 36(2C) constitutional? This decision seems to impliedly distinguish a previous FCAFC decision.

Omar (first instance) wrongly decided?

Federal Court (Full Court). Can it be said that, in the content of determining whether there is another reason to revoke under s 501CA(4) the mandatory cancellation of a visa under s 501(3A), "the greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms"? Further, was Omar (first instance) wrongly decided?

Timing of cl 485.223 & abuse of process

High Court. The AAT affirmed a refusal to grant the plaintiff a subclass 485 visa on the basis that his visa application had not been accompanied by evidence that the he had applied for a skills assessment. The plaintiff unsuccessfully applied to the FCCA for judicial review of the AAT's decision and unsuccessfully appealed to the FCA. The plaintiff eventually applied to the HCA for constitutional writ "on the basis of grounds rejected in the courts below". Was the application to the HCA in its original jurisdiction an abuse of process? Can cl 485.223 be satisfied by evidence provided to the decision-maker after the time of submitting the visa application?

Sub 485: changing streams

Federal Court. Appellant applied for subclass 485 visa under Graduate Work stream, but without positive skills assessment. Although this was not the case here, FCA discussed whether application would be invalid if it nominated 2 streams. Is a stream or subclass a visa class? If a person applies for a visa class, can a different class of visa be granted? Could the visa be granted under the Post Study stream? In answering the latter question, is it relevant that ImmiAccount: allowed the lodgement under the Graduate Work stream despite the fact that Appellant had answered "no" to the question as to whether he had a positive skills assessment; said that lack of a positive skills assessment "may result" in refusal?

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