Case Law Updates

Federal Court. Did the Tribunal err in concluding that the Minister retained a discretion under s 65 to grant a partner visa even if the applicant did not satisfy the special return criteria?

Federal Court. Can it be said that "an exercise of power under s 501(3A) [of the Migration Act 1958 (Cth)] is invalid where, objectively, a sentence of imprisonment of 12 months or more existing at the date of the cancellation decision is subsequently reduced on appeal to less than 12 months"?

Federal Court. Was Principle 6 of clause 5.2 of Direction 110 "concerned with attributing some responsibility or blame to Australia for a non-citizen’s conduct"?

Federal Court. Was the FCA decision in AJL20 plainly wrong? Was it reasonable for the Department to enable the Applicant's Tribunal review application to be determined before he was in fact removed to Vietnam? Does the phrase “as soon as reasonably practicable” in s 198 of the Migration Act 1958 (Cth) "require the Commonwealth to take any and all steps reasonably practicable for it to take towards the applicant’s removal"?

High Court. Plaintiff was born in what is now Malta in 1945, as a British subject. He then entered Australia in 1948 and became a UK citizen in 1949, retaining the status of a British subject. He held an absorbed person visa since 1994, until that visa was cancelled. He was never naturalised Australian and his parents were not Australian citizens. Can it be said that, because the Plaintiff had the status of a British subject when he arrived in Australia, he could not then have been conceived of as an "alien", with the result that he thereby acquired the status of a non-alien and therefore that he remains outside the reach of s 51(xix) of the Constitution?

Federal Court. Does the rule in Browne v Dunn apply to the Tribunal in the General Division? Doe the concept of materiality of an error for judicial review under s 75(v) of the Constitution apply to errors of law under s 44 of the AAT Act?

Federal Court. Does the inclusion of a specific procedural fairness requirement into para 8.2(2)(b) of Direction 99 require something more or something different than usual procedural fairness under 501CA(4) of the Migration Act 1958 (Cth)? If so, what is that "something more"?

Federal Court. Para 13.1.2(1)(a) of Direction 79 reads: "In considering the risk to the Australian community, decision-makers must have regard to, cumulatively: ... The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct". Does para 13.1.2(1)(a) require consideration of the probability of the harm manifesting?

Federal Court (Full Court). Is the threshold of the evidentiary burden of proof borne by applicants for habeas corpus higher than that borne by applicants for false imprisonment, in that the former requires the applicant to demonstrate that there is a “case fit to be considered”, whereas the latter only requires demonstration of the fact of imprisonment? Must applicants in both causes of action satisfy the evidentiary burden by reference to the same point in (or period of) time?

Federal Court. On 10 June 2020, Flick J held that BAL19 was not plainly wrong and declared that the Minister's delay in deciding the Applicant's protection visa application was unreasonable. His Honour held on that date that it was unnecessary to issue mandamus ordering the Minister to make a decision within a deadline his Honour expected that the Minister would abide by the declaration and make a decision without delay. However, the Minister wrote to the Applicant as follows after Flick J's decision: "As the Minister has now appealed the judgment of Justice Flick, no decision will be made on your client’s visa application pending the outcome of the appeal. The Minister’s position is that s 501A is an available power in relation to your client’s visa application and that Justice Flick was in error in finding that the delay in making such a decision was unreasonable and that s 501A was not an available power in the circumstances of this matter. Any decision made prior to the resolution of the appeal as to whether BAL19 was wrongly decided would render the appeal moot". Can Ministers of the Crown be imprisoned for contempt of court?