Case Law Updates

Federal Court. Is it "likely that the stronger a visa-holder’s ties to Australia, the greater the consequences of permanent exclusion of the visa-holder from Australia in the event that the visa is cancelled"? Was "at least one of the purposes served by the power conferred upon the Minister under s 501(2) of the Migration Act ... to protect the Australian public"? If so, then "having regard to the broad nature of the Minister’s discretion" and to the purpose of protecting the Australian public, was it "within the Minister’s authority to come to the view that [the Applicant] represented an unacceptable risk of harm in respect of any reoffending by him"?

Federal Court. The Minister found as follows under s 501BA of the Migration Act 1958 (Cth): "While I accept that the removal and visa limitations which result from a decision to cancel [the Applicant’s] visa would likely sever his ability to return to Australia, I find that this is the intended consequence of the operation of s 501 of the Act. Accordingly, I afford this consideration neutral weight." Was that finding circular and therefore legally unreasonable?

Federal Court. Does the AAT Act "require the representative to be independent of the applicant or to provide objective advice or guidance to the applicant"? Can it be said that "to conduct a review that is fair, just and economical does not require the necessary preclusion of a person who is also a witness from acting as a representative provided that by a representative so acting, the applicant is not deprived of a fair opportunity to present his or her case"?

Federal Court. In BAL19, FCA decided that s 501 did not apply to protection visa refusals. Does BAL19 also apply to s 501A refusals? Was the decision in BAL19 plainly wrong? Can the Minister "continue to administer the law on their own understanding of what the law is (or what it “should be”), and not as settled in BAL19, or to ... administer the law in a manner which they hope will be settled by the Full Court on appeal"? Subsection 476A(1) gave FCA jurisdiction in relation to migration decisions personally made by the Minister under s 501 and its analogues, but not under s 65. Minister argued that if he failed to make a decision within a reasonable time, that would be a decision under s 65, with the result that FCA did not have jurisdiction to order mandamus in relation to the failure to make a decision within a reasonable time. Did FCA have jurisdiction by reason of the terms "in relation to" in s 476A(1)?

Federal Court. Applicant was convicted of manslaughter. In considering under s 501CA(4) whether to revoke the mandatory cancellation of Applicant's visa, Minister referred to a media article that, according to Minister, related the Applicant's "failure to provide information to the Queensland Parole Board in relation to the body of the deceased notwithstanding that he was the admitted instigator of the events leading to his death". Was Minister prevented from considering that article, in light of the FCAFC decision in HZCP?

Federal Court: IAA affirmed decision to refuse Appellant a protection visa. Appellant then unsuccessfully applied to Federal Circuit Court (FCCA) for judicial review. FCCA's decision did not publish Appellant's name, in compliance with s 91X of Migration Act 1958 (Cth), which prohibits courts from publishing names of protection visa applicants. Appellant eventually appealed to Federal Court (FCA), arguing that: FCCA had constructively breached s 91X by publishing information sufficient to identify him; that breach was an appealable or jurisdictional error "because it frustrates the scheme by rendering the IAA decision nugatory..., in that it raises a new claim for protection". Should FCA issue a declaration that FCCA breached s 91X?

Federal Court. Should there be "unnecessary obstacles placed in the way of those who identify as First Nations People [such an adverse costs order] in proving what they contend is their rightful status under the Constitution"? Can it be said that the fact that a non-citizen's "legal representation was provided on a conditional basis with recoverable fees limited to any amount of costs paid by the respondent pursuant to an order of the Court tends neither for nor against the exercise of discretion [to award costs] in this case"?

Federal Court (Full Court). Was the Tribunal entitled to double count its assessment of the seriousness of the applicant's offending both when attributing weight to that specific consideration and again when weighing all considerations, both primary and other, in the final assessment?

Federal Court. If the Minister for Home Affairs makes a citizenship decision which is overturned by the AAT, can the Minister for Immigration bring judicial review proceedings? Section 16(2) of the Australian Citizenship Act 2007 provides that a person born overseas on or after 26 Jan 1949 is eligible to become an Australian citizen if, among other things, "a parent of the person was an Australian citizen at the time of the birth". If a person is born overseas to non-Australian biological parents and is later adopted by individuals who were Australian citizens at the time of that person's birth, is that person deemed to have been born to Australian parents for the purposes of s 16(2)?

Federal Court (Full Court). What is the meaning of "only because" in s 140(2)(a) of the Migration Act 1958 (Cth)? If the Federal Court sets aside an AAT decision to affirm a decision made under s 140 to cancel a visa, is that visa "taken never to have been cancelled", by reason of s 114(1)? Is a visa sponsor obliged under s 104 to notify the Department about a change in circumstance? Was AAT prevented from making decision under s 140(2) by reason of s 140(3)? Was the meaning of "parent" in s 15 of the Births, Deaths and Marriages Registration Act 1995 (NSW) confined to "biological parent"?