Case Law Updates

Federal Court: Did the FCCA inadvertently deny the Appellant procedural fairness by, among other things, saying to him that "you can't give [the FCCA] anything new"? The answered turned on what "anything new" meant in the circumstances.

Federal Court. In assessing, pursuant to Direction 79 and s 501CA(4) of the Migration Act 1958 (Cth), the expectations of the Australian community, the Tribunal reasoned as follows: "I believe that a properly informed and objective member of the Australian community would not expect [the Applicant] to continue to hold a visa to remain in Australia". Is that reasoning on its face inconsistent with the principles expounded in FYBR about the deemed expectations of the Australian community?

High Court. Does an order for costs in favour of an unincorporated law firm entitle the firm to obtain recompense for legal work performed by an employed solicitor of the firm?

Federal Court. If the Minister relies on an Adverse Security Assessment (ASA) rather than independently assessing the risk posed by a person, does this amount to dictation? Can the Minister consider non-refoulement obligations as part of the residual discretion under s 501(2)-(3)? Is a decision under s 501(3) or 501C(4) rendered invalid by relying on s 501(6)(g) in circumstances where the ASA is invalid? In assessing whether s 501C(4)(b) is met, is the Minister limited to considering the same sub-sections of s 501(6) which founded cancellation under s 501(3)?

Federal Court (Full Court): 'Modern Australian society’s cultural awareness... should be at the very foundation of a decision which affects Aboriginal family and community'

Federal Court (Full Court): In 2012, delegate decided not to exercise the discretion under s 501(1) of the Migration Act 1958 (Cth) to refuse the Appellant a bridging visa and notified him of it. In 2013, Appellant was granted a partner visa. In 2016, Appellant was convicted for conduct occurring for 7 years until 2009. In 2018, Minister found that Appellant failed the character test due to the 2016 conviction and personally exercised the discretion to cancel his visa under s 501(2). Did the 2012 decision estop the Minister from making the 2018 decision?

The High Court decided whether Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] [1992]) are within the reach of the "aliens" power conferred by s 51(xix) of the Constitution.

Federal Court. Does s 501(10)(a) of the Migration Act 1958 (Cth) apply to a formal act or judicial act or order of conviction, but not to a finding of guilt? Can it be said by reason of s 38(2) of the FCA Act and r 25.13.4 of the High Court Rules 2004 (Cth) that, as the Federal Court Rules 2011 (Cth) make no particular provision in respect of the time within which a writ of mandamus should be returned, "unless otherwise ordered by the Court or a Justice, a writ of mandamus must be returnable within 14 days from service of the writ"?

Federal Court (Full Court). Could a conclusion that a non-citizen posed a risk of reoffending similar to other ordinary Australian residents rationally support a conclusion that the risk was unacceptable? Can it be said that "a finding that the appellant’s conduct has not been tested in the community does not establish that the appellant is a risk of reoffending"?

According to the majority, jurisdictional error consists of a material breach of a condition of the exercise of a decision-making power. ‘Ordinarily... breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision'.