Case Law Updates

Federal Court (Full Court). Can it be said that, in an appeal by way of re-hearing, "in deciding the proper inferences to be drawn from facts undisputed or otherwise found, the appeal court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it"? Is error "limited to showing why or how the trial judge erred in the process or approach that was taken"?

Federal Court: when determining under s 501CA(4) of the Migration Act 1958 whether to revoke the mandatory cancellation of a visa, should a decision-maker also take into consideration the non-citizen's submissions regarding what the expectations of the Australian community are or should the decision-maker only take into consideration their own views of what constitutes those expectations?

Federal Court (Full Court). When the language of a statute is ambiguous, Parliament is presumed to have intended the statute to conform to Australia's obligations under international law and not to interfere with fundamental common law rights and freedoms. Art 12(4) of ICCPR provides: “No one shall be arbitrarily deprived of the right to enter his own country”. Is the term "person" in ss 501(3A) & 501CA(4) ambiguous, with the result that those provisions should be interpreted as not applying to non-aboriginal non-citizens with longstanding ties to Australia, in light of Art 12(4)? Is there a common law right for such individuals to enter and remain in Australia? If not, should the common law be extended to that effect, influenced by Art 12(4)?

Federal Court. Does the term 'before the Minister' in s 473DC(1)(a) of the Migration Act 1958 (Cth) refer to documents or information to which the delegate has had regard? Is it "necessary for a document or information to be physically before the Minister’s delegate or for the delegate to have had regard to it on the very day the decision is made for it to be said that the document or information was before the Minister when the Minister’s delegate made the decision under s 65"?

Federal Court. Was the Tribunal obliged under para 9.1(6) of Direction 90, in reviewing a decision made under s 501CA(4) of the Migration Act 1958 (Cth), to consider whether it was appropriate to assume that the ‘claimed harm’ would occur?

Federal Court. Was the view of the Australian government and community that sexual and violence-related crimes are "very serious" (as 8.1.1(1)(a) of Direction 90 records) something that was apt to inform any assessment of the nature or seriousness of the Applicant's criminal history, in circumstances where his offending was neither sexual nor violence-related?

Federal Court. AAT set aside delegate's decision to refuse protection visa and granted Respondent a visa. Minister applied to FCA for judicial review, claiming AAT had no jurisdiction to grant the visa. Minister also made interlocutory application for matter to be expedited and kept Respondent in detention despite visa grant. Respondent made interlocutory application for his immediate release, on the basis that he was being unlawfully detained. Should FCA expedite the hearing of the Minister's judicial review application? Did FCA have jurisdiction to entertain the Respondent's interlocutory application for release? Did FCA have the power to issue writ of habeas corpus? Was Respondent unlawfully detained after Tribunal granted him a visa?

Federal Court. Applicant's visa was cancelled under s 501(3A). Delegate refused to revoke cancellation under s 501CA(4). AAT: found it had jurisdiction to review delegate's decision; erroneously found revocation request had not been made by deadline; thus, found that neither AAT nor delegate had power to revoke; nonetheless found that, had it been made by deadline, it would have affirmed delegate's decision, based on its opinion that there was not "another reason" to revoke cancellation; set aside non-revocation decision; and remitted matter to Minister with a direction that the cancellation decision not be set aside. Was AAT's error not jurisdictional, given its opinion that there was not "another reason"?

Federal Court (Full Court). In order to make out the statutory grounds of review specified in s 5 of the ADJR Act, was it necessary for the judicial review applicant to show that any errors were jurisdictional? In relation to the exercise of the discretion under s 16 of the ADJR Act as to whether to grant relief, is there a like standard of “reasonable conjecture” to that which informs whether an error is jurisdictional?

Federal Court: Can an administrative decision-maker "find that a fundamentally flawed relationship could not simultaneously be a relationship in which the parties have a mutual commitment to a shared life"? Can it "be said that questions raised and conclusions reached about the stability of the relationship" are irrelevant to an administrative decision-maker's assessment of the factors in reg 1.15A(3)(d)?